,;i UNITED STATES DISTRICT COURT

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DISTRICT OF MASSACHUSETT&", I . '.

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Western Division

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Catherine Hutchinson, by her guardian,

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Sandy .Tulien; Raymond Puchalski,

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by his guardian Nickie Chandler;

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Glen Jones. by his guardian Steven Jones; and )

Nathaniel Wilson, on behalf of themselves and )

all others similarly situated; and

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The Brain Injury Association of

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Massachusetts

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Plaintiffs,

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v.

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Deval L. Patrick, Governor;

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JudyAnn Bigby, Secretary of the Executive Office )

of Health and Human Services,

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Leslie Kirwan, Seeretary of the Executive Office )

of Administration and Finance;

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Thomas Dehner, Acting Director of .\1ass Health, )

Elmer C. Bartels, Commissioner of Massachusetts )

Rehabilitation Commission

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Defendants.

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! 1/ / Civil Action No!. j i

CLASS ACTION COMPLAINT I. INTRODUCTION
1. Named plaintiffs Catherine Hutchinson, Raymond Puchalski, Glen Jones and Nathaniel Wilson (hereafter "the plaintiffs") have serious brain injuries that substantially impair basic life skills and require ongoing rehabilitation and support. Each of these individuals is qualified for the defendants' system ofiong term care services for persons with disabilities, including Medicaid services. Each is unnecessarily institutionalized in a nursing or rehabilitation facility because of the defendant's failure to provide these services and support in appropriate,
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integrated community settings. Instead, the defendants require these individuals, and hundreds of other individuals with brain injuries, to live in facilities segregated from the community as a condition ofreceiving carc and assistance.
2. Approximately 8000 individuals with brain injuries currently reside in nursing and rehabilitation facilities in Massachusetts. At least a quarter ofthese individuals are able to, and prefer to, live in integrated community settings with appropriate supports. In the absence of these services, they remain unnecessarily institutionalized, sacrificing their personal liberty, autonomy and freedom of association, as well as meaningful access to community life, in order to receive care and treatment for their disability. Hundreds more individuals with brain injuries are at risk of admission to such facilities just to receive the limited rehabilitative services that the defendants do provide.
3. Despite their ability to benefit from community-based supports, all of these individuals, and others similarly-situated, are experiencing or will experience unnecessary and prolonged institutionalization in violation of the Americans with Disabilities Act (ADA). 42 USc. § 12132 et seq; 28 C.F.R § 35.130(d) et seq., and Section 504 oflhe Rehabilitation Act of 1973 ("Rehabilitation Act"). 29 U.S.c. § 794(a) et seq.
4. The brain injuries experienced by these individuals are profound and life changing, but they need not result in a lifetime of institutional care. Like persons without disabilities, these individuals need "family relations, social contacts, work options, economic, independence, educational advancement and cultural enrichment." Olmstead v. I.e., 527 U.S.581, 600 (1999). Their medical and rehabilitative needs can best be met in community settings, which have been demonstrated to improve skills, promote rehabilitative goals, and facilitate independence for persons with brain injuries and other severe disabilities. These
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individuals are entitled to receive services in the most integrated setting appropriate for their needs and should not continue to suffer the isolation and indignity of institutional care because of the defendants' ineffective reliance on institutions like nursing and other long term care facilities.
5. The defendants' excessive use of institutions to care for persons with brain injuries is longstanding. Many individuals with brain injuries have been determined by their treatment professionals to be ready for placement into a community setting, but these professional recolll1nendations have not been implemented for many years due to the lack of appropriate alternatives. Despite knowledge of these recommendations, of the professional consensus about the benefits of community living, of the cost-effectiveness of non-institutional alternatives, and of the mandates of rederallaw, the defendants have not made reasonable efforts to develop collllllunity alternatives to institutional confinement for persons with brain injuries.
6. Instead, the number of persons with brain injuries who remain needlessly institutionalized in nursing and rehabilitation facilities in Massachusetts has increased over the past decade. There has been no meaningful effort by the defendants, through the Executive Office of Heallh and Human Services (EOHHS) and other state agencies, to create community alternatives for these individuals. Moreover, the defendants have failed to develop and implement a comprehensive and effectively working plan to move individuals with brain injuries into the community at a reasonable pace.
7. In fact, defendants have effectively denied nursing and rehabilitation facility residents access to their two, small community services programs for individuals with traumatic brain injuries. The defendants fail to inform nursing and rehabilitation facility residents ofthese programs, fail to assess them for these programs, and fail to afford them equal access to these programs. Moreover, the defendants administer these programs in a discriminatory manner,
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purposefully excluding individuals with acquired hrain injuries or who, because of the severity of their disability, find themselves with no option but to be admitted to a nursing or rehabilitation facility for long term care.
8. By requiring these individuals, and others similarly situated, to submit to institutionalization as a condition for receiving long term care, the defendants cause the plaintiffs to experience unnecessary regression, deterioration, isolation, and segregation. This segregation "perpetuates unwarranted assumptions" that these individuals are "incapable or unworthy of participating in community life." Olmstead. 527 U.s. at 600.
9. As Medicaid-eligible individuals, the plaintiffs are entitled to a choice of institutional and community settings, 42 U.S.C. § 1396n(c) et seq, including reasonable access to the defendants' federally-funded Home and Community-Based Services (HCBS) waiver program. Instead, the defendants have failed to administer this Medicaid program in an efficient and eficctivc manner, providing inadequate notice of, and access to, the HCBS program.
10. Even within nursing facilities, the defendants provide these individuals, and others like them, limited access to rehabilitative services such as speech, occupational and physical therapies. The provision of nursing and related services is often based on a person's needs in the institutional setting, as opposed to the rehabilitative services necessary for successful community integration. The denial of these medically necessary therapies, all of which are Medicaid- covered services and which must be provided promptly and as long as medically necessary under the law, further impedes the plaintiffs' prospects for recovery and for independent community living. Ovcr time, this failure to provide necessary services has resulted in significant deterioration of the plaintiffs basic functioning, abilities, and medical condition.
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11. The defendants' failure to provide community-based support services has caused, and will continue to cause, serious, long-term, and potentially irreversible harm to the plaintiffs and the class of individuals they represent. The plainti ffs, therefore, seek prospective injunctive relief ordering the defendants to provide the rehabilitative services they need, and the integrated, community-based support services to which they are entitled, in accordance with federal law. II. ,JURISDICTION AND VENUE
12. This is a civil action authorized by 42 US.C § 1983 to redress the deprivation of rights, privileges, and immunities guaranteed by federal law. This Court has subject matter jurisdiction pursuant to 28 U.S.C § 1331, 1343(a)(3), and 1343(a)(4).
13. This Court has jurisdiction over this action for declaratory relief pursuant to 28 U.s.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 C.S.C § 2202, 42 e s c § 1983, and Rule 65 of the Federal Rules of Civil Procedure.
14. Venue is proper in the District of Massachusetts pursuant to 28 e.s.c § 1391 (b)(2), as a substantial part of the events or omissions giving rise to these claims occurred within the Commonwealth of Massachusetts. Half of the individual plaintiffs reside in western Massachusetts. III. THE PARTIES
A. The Named Plaintiffs I. Catherine Hutchinson
15, Catherine Hutchinson is a 54 year-old woman and mother from Attleboro who now resides ut Middleboro Skilled Care Center (MSCC) in Middleboro, Massachusetts. She brings this action through her guardian, Sandy Julien, who lives at 405 Willett Avenue in Riverside, Rhode Island.
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16. Ten years ago, Ms. Hutchinson suffered a stroke that caused bleeding in her brain stem. As a result of this acquired brain injury, she has very little movement in her arms and legs. She operates an electric wheelchair using a button and directional arrows she can manipulate with her head. Although Ms. Hutchinson is unable to speak, she can effectively communicate her thoughts and wishes. With her eyes, she can answer basic questions, utilize a letter board and operate e-mail via the internet. She has re-Iearned many basic skins since her injury, including how to swallow on her own and how to use a straw for drinking.
17. ;vIs. Hutchinson receives no ongoing, rehabilitative services, despite a medical need for these services in order to maintain her physical well-being and prevent further deterioration of her medical condition. What restorative treatment she does receive is limited in naturc.
18. Ms. Hutchinson has been a resident of the nursing facility for more than nine years. She has long expressed her desire to return home with community support services, and to be closer to her family and friends. Her soeial worker and treatment professionals agree that she could live in a less restrictive selting with the appropriate services in place. Ms. Hutchinson describes herself as trapped, a prisoner of her disability and of the nursing facility that leaves her isolated from the life she used to know.
19. Because Ms. Hutchinson's disability resulted fi·om a medical event, rather than an accident, she is considered to have an "acquired" brain injury, rather than a traumatic brain injury. As a result of this arbitrary distinction she, and many class members like her, are denied access to the only brain injury services offered by the defendants. Ms. Hutchinson is a remarkable and intelligent woman who uscs her time and energy to adyoeate on behalf of people with similar disabilities. She would benefit from access to community-based services, but is
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forccd to rcmain in an overly restrictive nursing facility due to the defendants' discriminatory administration of their long term care system.
2. Raymond Puchalski 20. Raymond Puchalski, ("Ray") is a 58 year-old man from Millers Falls who now resides in Kindred/Goddard Hospital's neurobehavioral unit in Stoughton, Massachusetts. Mr. Puchalski brings this action through his guardian, Nickie Chandler, who lives at 165 Old Bay Road in Belchertown, MA. 21. Four years ago, Mr. Puchalski's car was struck by a driver who fell asleep at the wheel. Mr. Puchalski was in a coma for four weeks following the accident and was not expected to survive. Following the acute phase of his treatment, he spent eighteen months in a nursing facility with little specialized treatment. In order to secure more appropriate care, his partner and guardian was again forced to place him in an institutional setting, one far from his home in western Massachusetts. 22. In the two years since his admission, Mr. Puchalski has made significant progress. He can ambulate and feed himself independently. He has also learned to shower on his own with cues. Although he has had significant difficulty with both expressive and receptive language communication, his communication skills are also showing signs of improvement. 23. Social work staff and Mr. Puchalskis treatment professionals agree that he could be discharged to a small, supervised community residence with appropriate support, but there is no community setting available for him. He longs to have more freedom, to spend time outdoors and with family, and to return to his home in Millers Falls, the only place he ever wanted to live. These goals seem remote, however, and his unnecessary institutionalization likely to continue, given the lack of appropriate community support services made available by the defendants.
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3. Qlenlones 24. Glen Jones is a 57 year-old man from Haverhill who currently resides at the Worcester Skilled Care Center (WSCC) in Worcester, Massachusetts. He brings this action through his guardian, Steven Jones, who lives at 51 Kent Street in Haverhill, Massachusetts. 25. Mr. Jones worked as an auto mechanic and owned his own business prior to the accident that changed his life. Tn 1986, he sustained an open head injury following a motor vehicle crash and spent three weeks in a coma. After receiving rehabilitative treatment in two area facilities, he was discharged to WSCC in 1990. 26. Mr. Jones has spent the past 21 years of his life in institutional settings. He has chafed against the limitations of those environments, longing for a return to meaningful employment and the life of independence he used to know. Following his injury, his family applied to the one state-funded program for persons with traumatic brain injury, but never received the services necessary to facilitate his discharge to the community. Efforts to identify existing residential programs were unsuccessfuL 27. Mr. Jones is articulate, mobile and motivated to resume his former life. He has the continuing support of family, and hopes to return to the Haverhill area where his brother and mother reside. Mr, Jones' treatment professionals agree that he could benefit from more integrated community support services, if those services existed. In their absence, he has been forced to spend decades of his adult life isolated from the community, living apart from family and friends, and unnecessarily confined in an institutional setting.
4. Nathaniel Wilson 28. Nathaniel Wilson is a 54 year old man from Springfield who currently resides at the Wingate of Wilbraham skilled nursing facility in Wilbraham, Massachusetts. He brings this
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action on his own behal f. 29. A fonner macbinist, Mr. Wilson began experiencing physical limitations
approximately ten years ago that affected his ability to work. He struggled to secure section 8 housing and to survive on disability benefits. In April of2006, he experienced a stroke that damaged the right side of his brain. This acquired brain injury primarily impacted the left side of his body, affecting his speech, mobility, facial muscles and hand.
30 Despite significant progress in the early phase of his rehabilitation, Mr. Wilson still suffers from chronic and debilitating pain in the left side. of his body. However, he can ambulate with a walker and is able to communicate clearly.
31. Mr. Wilson has limited opportunities to leave the nursing facility. A brother provides his only regular access to the community, transporting him to volunteer at an area church each week. Otherwise, a chair outside the nursing facility entrance is his only exposure to the outside world.
32. Mr. Wilson has little in common with the facility's older residents, and he longs for the autonomy and pri vacy of his former life. He is able to independently perfonn most activities of daily living and has no hands-on nursing needs. He has received only short-tenn rehabilitative services at Wingate. He would benefit from the opportunity to live in an integrated community setting and to participate in more community-based programs. He needs ongoing physical therapy to support these community integration goals.
33. Mr. Wilson seeks to leave the facility and to live as independently as possible in the community. His social worker and treatment professionals agree that he could function in the community with supervision and support, and believe he would be happier living in a less
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restrictive setting with people his own age. However, a lack of appropriate community-based services has prevented his discharge.
34. Since Mr. Wilson's disability resulted from a medical event, rather than an external accident, he is considered to have an "acquired" brain inj ury. As a result of this arbitrary distinction, Mr. Wilson, and many class members like him, are denied access to the only brain injury services offered by the defendants. Mr. Wilson would benefit from access to integrated, community-based services, but is forced to remain in an overly restrictive nursing home setting due to the discriminatory nature of the defendants' service system.
B. The Orgallizatiollal Plailltiff 35. The Brain Injury Association of Massachusetts ("BIAMA") is a statewide, nonprofit advocacy organization comprised of, and operated by. persons with brain injuries, their families and friends, and other medical professionals. 36. BIA.l\1A is dedicated to ensuring that all citizens with brain injuries in the Commonwealth are afforded appropriate services and supports in the most integrated, home-like setting possible, and that these individuals and their families have meaningful choices about the nature and location of those services. Over the course of its 25-year history, BIAMA has listened to, and sought to magnifY the voices of, those living with brain injury, particularly those who, because of a lack of appropriate services, find themselves segregated in institutional settings or at risk of institutional placement. As an organization. BIAMA has advocated for enhancement of government services for persons with brain injuries, and particularly for the expansion of community support services. II also has monitored the actions of the defendants in order to ensure that sueh services are made available. It has expended considerable organizational resources attempting to expand community services and supports for persons with
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brain injuries. Despite these committed eHorts, BIAMA has been unable to achieve the improvements necessary to redress the ongoing civil rights violations experienced by its members and alleged within this Complaint.
37. BIAMA is a membership organization that includes individuals with both acquired and traumatic brain injury who reside in nursing facilities. In addition to its organizational interest in expanding community settings and supports, BIAMA has many members who are also members of the plaintiff class and who are directly harmed by the actions and inactions of the defendants.
C. The Plaintiff Class 38. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the named plainliHs bring this matter as a class action on behalf of Massachusetts residents who now, or at anytime during this litigation: (1) are Medicaid eligible; (2) have suffered a brain il1iury; (3) reside in a nursing or rehabilitation facility or are eligible for admission to such a facility; and (4) would benefit from community support services. The proposed class excludes nursing facility residents who are class members in a related case, Rolland v. Cellucci, 191 F.R.D.3 (D. Mass. 2000). 39. The plaintiff class is so numerous and geographically diverse that joinder of all members is impracticable. It is estimated that, at any given time, the plaintiff class exceeds at least several thousand individuals. 40. There are questions of law and fact common to the plaintiff class including, inter alia: (1) whether defendants are violating the ADA and Section 504 by: i) failing to provide community support services to nursing or rehabilitation facility residents who
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have brain injuries in the most integrated setting appropriate to their needs; ii) failing to develop a comprehensive and effectively working plan for achieving this goal; iii) utilizing methods of administration that do not allow for community placements to oceur at a reasonable pace; iv) requiring persons with brain injuries to be admitted to and remain in nursing and rehabilitation facilities due to a lack of appropriate community support services; v) unlawfully discriminating against persons with acquired brain injuries; and vi) unlawfully discriminating against persons with brain injuries based on the severity of their disabilities; and (2) whether defendants are in violation of the federal Medicaid program by: i) failing to provide necessary rehabilitative services with reasonable promptness; ii) failing to provide nursing or rehabilitation facility residents with brain injuries with adequate notice of, assessment for, and access to community support services; and iii) denying persons with brain injuries a choice between an institutionalized nursing or rehabilitation facility and integrated community waiver services by failing to inform them of these alternatives, failing to provide them with relevant information necessary to exercise this choice, and failing to afford them meaningful access to community waiver services. 41. As a result of the defendants' actions and inactions, the named plaintiffs have been denied access to the rehabilitative and community support services needed to avoid unnecessary segregation and the devastating effects of prolonged institutionalization. These claims are typical of the plaintiff class, allowing the named plaintiffs to adequately and fairly represent the iederal rights and interests of class members. The individual plaintiffs will fully and vigorously prosecute this action, understanding that many class members are unable to pursue their individual rights, or to remedy these systemic violations, on their own. The
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plaintiffs seek certification ofa class pursuant to Fed. R. Civ. P. 23(b)(2) on the grounds that the defendants' policies, practices, and procedurcs are unlawful, discriminatory, and perpetuate an ongoing harm against similarly situated individuals with serious brain injuries, thereby making injunctive and declaratory relief appropriate with respect to the entire plaintiff class.
42. Thc named plaintiffs seek relief that will inure to the benefit of the plaintiff class as a whole. The plaintiffs are represented by attorneys experienced in federal class action litigation, disability law and public assistance benefits, including the Massachusetts Medicaid progra.Jn.
D. The Defendallts 43. Deval L. Patrick, Governor of Massachusetts, is the Chief Executive Officer of the Commonwealth. He oversees the various executive departments of state government including the multiple secretariats and agencies responsible for the care and treatment of individuals with disabilities and specifically persons with brain if\juries. including the Executive Oflice of Health and Human Services (EOHHS) and the Executive Office of Administration and Finance (EOAF). He appoints the heads of these secretariats and approves the appointment of Commissioners responsible for the operation of state departments and agencies that manage and fund health and disability services, including the director of the Office of Medicaid (MassHcalth) and the Commissioncr ofthc Massachusetts Rehabilitative Commission (MRC). He also is responsible for seeking funds from the legislature to implement the Medicaid program. He is sued in his official capacity. 44. JudyAnn Bigby, Secretary of EOHHS, is responsible for the oversight, supervision, and control ofthe health and human services departments within the Executive Office, which includes the agmlcies responsible for providing, funding, or arranging communitybascd services for individuals with disabilities, and specifically MassHealth and MRC. Secretary
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Bigby is responsible for ensuring that persons with disabilities are cared for, treated, and supported as required by law, and for coordinating and monitoring the agcncies within EOHHS that are assigned to fulfill this duty. EOHHS is also the single state Medicaid agency for the Commonwealth pursuant to 42 IJ.S.c. § 1396a(a)(5). As such, Secretary Bigby is responsible for ensuring thaI the defendants' Medicaid programs, including their long-term care program, their nursing facility program, and their Home and Community-Based Services waiver program are operated in a manner consistent with federal requirements. She is sued in her official capacity.
45. Leslie Kirwan, Secretary of EOAF. is responsible for seeking and approving the expenditure of adequate funds from the legislature to comply with the requirements of the Medicaid program and the provision of integrated community services consistent with federal law. She is sued in her official capacity.
46. Thomas Denher, Acting Director of MassHealth and the Office of Medicaid, is responsible for the day-to-day operations of the Massachusetts Medicaid program. He oversees the development and execution of the defendants' Medicaid plan, all Medicaid policies, procedures, contracts, and practices, including those regarding services for persons with brain injuries. He is sued in his official capacity.
47. Elmer C. Bartels, Commissioner of the Massachusetts Rehabilitation Commission ("MRC"), is responsible for directing his agency's efforts to promote employment and independent living for persons with disabilities. Commissioner Bartels oversees MRC's Vocational Rehahilitation Services, Community Services, and Federal Eligibility Determinations divisions. The Brain Injury and Statewide Specialized Community Services Program (BISSCS) is part of the Community Services Division ofMRC. Formerly identified as the
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Statewide Head Injury Program (SHIP), BISSCS is the only state program devoted to serving persons with traumatic brain injury. MassHealth has designated BISSCS as the entity responsible for applications to and screening of candidates for the defendants' Traumatic Brain lnj ury Waiver. Commissioner Bartels is sued in his official capacity.
48. In ligbt of the duties of all state defendants as set forth above, the Governor, the Secretaries ofEOHHS and EOAF. the Commissioner ofMRC and the Director of MassHealth are necessary for effective relief in this case. IV. FACTUAL ALLEGATIONS
A. Individuals wit" Brain lI~;uries 49. Brain injuries vary in origin and effect. When brain injuries are caused by internal medical events such as stroke, loss of oxygen (anoxia), poisoning (toxemia) or brain tumors, they are referred to as acquired brain injuries (ABr). If they are caused by external events, like falls, auto accidents or other head wounds, they are part of a subset of acquired brain injuries called traumatic brain injuries (TBI). Both types of brain injuries ean result in a similar disabling conditions that severely limit functioning, basic skills, and cognitive processing. These injuries also necessitate very similar community-based supports for afTected individuals. 50. Brain injury can cause a wide range of functional changes that negatively affect an individual's basic life skills including movement, memory, thinking, learning, sensation, communication, and behavior. It can also increase a person's risk for a variety of medical conditions and other brain disorders including Alzheimer's and Parkinson's diseases. 51. The Center fi)f Disease Control estimates that there are currently 5.3 million individuals or more than two percent of the U.S. population -- living with a long-term disability resulting from traumatic brain injury. When considering an individual's family and
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circles of support, brain injury touches the lives of approximately one in ten persons in the United States, Of the 1.4 million traumatic brain injuries every year, 50,000 result in deaths, 235,000 in hospitalization, and Ll million in emergency room visits,
52, Acquired brain injuries occur with equally staggering prevalence, For example, approximately 700,000 Americans each year suffer a new or recurrent stroke, resulting in the death of 157,000 citizens annually,
53, Massachusetts' experience with brain injury mirrors that of the Nation, In 2004, there were 486 traumatic brain injury-related deaths among Massachusetts residents, In fiscal year 2004, there were 4,994 inpatient hospitalizations associated with non-fatal traumatic brain injuries, Approximately 1,750 individuals with brain injuries - more than thirty-five percent of those hospitalized- were di scharged to a nursing or rehabilitation facility in 2004,
54, Individuals who survive serious brain injuries are likely to need hospitalization and intensive rehabilitation during the initial phase of their care and treatment. However, many individuals can subsequently reside in more integrated community settings with appropriate supports. Of the estimated 8,200 individuals with brain injuries currently in nursing and rehabilitation facilities across the Commonwealth, at least a quarter could transition to integrated community settings if appropriate services were available, Hundreds morc wbo currently live in the community are eligible for, and at risk of, institutionalization because of the lack of adequate community services,
55, \Vhile individual needs may vary widely, most persons recovering from serious brain injuries require some level of assistance with personal care aud activities of daily living, ongoing speech, occupational and physical therapies, medical and nursing services, vocational
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training or day habilitation programs, durable medical equipment, transportation, and integrated social and recreational activities. !I.1any also require accessible living arrangements.
56. All these services are available to some degree in the community, and most are covered by !I.1edicaid. However, there is simply an insufficient capacity and intensity of supports to meet the needs of nursing facility residents and others who no longer require institutional care for their brain injuries. For these individuals, the denial of access to community-based support services has profound consequences. The majority of individuals who sustain moderate or severe brain injuries experience significant medical, physical, behavioral, and cognitive
problems. These conditions are exacerbated by prolonged and unnecessary institutionalization,
leading to deterioration in individuals' functional independence and daily living skills, severe limitations on their community access, and negative outcomes for their social/vocational development and emotional well-being.
B. The Requirements ofthe Americans witlt Disabilities Act and Sectioll 504 of The Rehabilitation Act 1. l'Iondiscrimination and the Integration Mandate
57. In 1990, Congress enacted the ADA, 42 UB.C. §§ 12101 - 12181. to advance the civil rights of people with disabilities. The ADA's purpose and goal is "the elimination of discrimination against individuals with disabilities." 42 USc. § 12101(b)(l). In enacting the ADA. Congress stated that, "Historically, society has tended to isolate and segregate individuals with disabilities" and that such fomls of discrimination "continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2). Congress further detennined that "The Nation's propcr goals regarding individuals with disabilities are to assure equality of opportunity, filII participation, independent living, and economic sufficiency for such individuals." 42 U.S.c. § 12101{a)(8).
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58. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.s.c. § 12132. Title II prohibits unnecessary segregation and institutionalization. 28 C.F.R. § 35.l30(d) ("A public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of the qualified individual with disabilities"). As the Supreme Court stated in Olmstead. "unjustified institutional isolation of persons with disabilities is a fonn of discrimination" because "[i]n order to receive needed medical services, persons with menial disabilities, because of those disabilities, relinquish participation in community life.. ,," 527C.S. at 600-601.
59. Discrimination on the basis of disability is also prohibited by Section 504 of the Rehabilitation Act. 29 C.S.c. § 794(a) et seq. Section 504's accompanying regulations provide that recipients offederal funds "shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.51 (d).
2. Methods of Administration 60. Both the ADA and Section 504 of the Rehabilitation Act prohibit public entities from utilizing "criteria or methods of administration" that have the effect of subjecting qualified individuals with disabi lilies to discrimination, including unnecessary institutionalization. 28 C.F.R. § 35.130(b)(3); § 415I(b)(3); 45 C.F.R. § 84.4(h)(4). 61. Section 504 regulations specifically prohibit recipients offederal financial assistance from "utiliz[ing] criteria or methods of administration ... (i) It]hat have the effect of SUbjecting handicapped persons to discrimination on the basis of handicap; [or] (ii) that have the
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purpose or effect of defeating or substantially impairing accomplishment oflhe objectives of the recipient's program with respect to handicapped persons." 28 C.F.R. § 41.SI(b)(3).
C. The Mandates ofthe Medicaid Program 1. Ihe Federal Medicaid program
62. The Medicaid program, authorized and regulated pursuant to Title XIX ofthe Social Sccurity Act. is a joint federal-state medical assistance program for low-income persons. See 42 C.S.C. § 1396a e/ seq. One of the purposes orthe Medicaid program is to provide "services to help such families and individuals attain or retain capability for independence or self-care."!d. At the federallevcl, the Medicaid program is administered by the U.S. Department of Health and Human Services' Center for Medicaid and Medicare Services ("CMS").
63. States arc not required to participate in Medicaid, but once a State agrees to participate, it must comply with the requirements imposed by the Act and the regulations promUlgated by the Secretary of Health and Human Services. The services that the State must provide, as well as the services they elect to providc, arc described in the State plan, which is approved by the Secretary.
64. States are reimbursed by the federal government for a portion of the cost of providing Medicaid benefits, Massachusetts receives approximately fifty cents in federal reimbursement for every dollar it spends on Medicaid services.
65. Pursuant to Section 1915 of the Social Security Act, the Secretary may waive certain requirements of the Act and provide that an approved State plan include as medical assistance payment for the cost of Home and Community-Based Services (HCBS). 42 U.S.c. § I396n. Although States must apply for a speci fie number of persons to be served by a HCBS
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waiver, there is no limit to how many persons may be included on a waiver. Historically, States have routinely requested, and the federal government has regularly approved, incremental increases in the number of persons included in a waiver. In fact. the federal government has inronned States that a limit on the number of persons served by a waiver, or the lack of sufficient waiver capacity, does not excuse States from complying with other federal laws, including the ADA's integration mandate.
66. HCBS are provided to individuals pursuant to a written plan of care, following a detennination that, but for the provision of such services, the individual would require the level of care provided in a nursiug facility. 42 V.S.c. § 1396n(c)( I). If a State chooses to offer a HCBS waiver program, it must infonn eligible individuals about any feasible alternatives available under the waiver, and give those individuals the choice of either institutional or home and community-based services. 42 FS.C. § 1396n(c)(2)(C); 42 C.F.R. § 441.302(d).
67. A State's HCBS waiver program must also assess whether potential home and community-based service recipients need inpatient hospital services, nursing facility services or services in an intennediatc care facility. 42 U.S.C. § 1396n(c)(2)(B).
68, A core provision of the Medicaid Act requires that States provide Medicaid benefits to all eligible individuals with reasonable promptness and for as long as medically necessary. 42 U.S.C. § 1396a(a)(8); 42. U.s.C. § 1396a(a)(l0)(A); 42 C.F.R. § 435.930(a).
2. The Massachusetts Medicaid program 69. Massachusetts has chosen to participate in the Medicaid program, EOBHS is the single state agency that administers the Massachusetts Medicaid program. M.O.L. c. 118E §I. 70. As required by the Medicaid Act, Massachusetts has prepared a State plan that the Department of Health and Human Services has approved. That plan, along with relevant federal
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law and regulations, fonn the foundation for the Massachusetts Medicaid program and estahlish

the defendants' obligations and responsibilities to Medicaid recipients. The plan includes all

treatment, services, and supports required by the Medicaid Act (mandatory services), numerous

services and treatment pennitted by the Act (optional services), and several HeBS waiver

programs. Specifically, the plan includes care and treatment in nursing facilities, physician and

nursing services, a range of rehabilitative services like physical and occupational therapy,

personal care assistance, durable medical equipment like wheelchairs and assistive technology,

and certain home-based services like residential supports, vocational training and respite

servIces.

3. Massachusetts' Waiver Programs

71. In 2001, eMS approved a Section 1915 HCBS waiver to provide a wide range of

community services and supports solely to persons with traumatic brain injuries.

72. In 2006, MassHealth submitted a demonstration waiver to eMS under Section

1115 of the Social Security Act to provide community alternatives for persons currently residing

in, or at risk of being admitted to, nursing facilities. The demonstration waiver, if approved by

CMS, would incorporate the HeBS waiver for persons with traumatic brain injury, as well as

other existing waiver programs for elders. Because it does not focus on persons with brain

injuries or even persons with disabilities, the demonstration waiver is not likely to address the

longstanding needs of the plaintiffs for integrated community services.

D. The Segregation and Discrimination ofPersons with Serious Brain Injuries

1.

The effects ofullllecessary i~tit.illionalization on persons with brain

IllJunes

73. The named plaintiffs. and the majority of persons with serious brain injuries,

have spent weeks or months in acute eare hospitals and rehabilitative facilities. Once their

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acute treatment needs end, there are few community-based options for continued rehabilitative care. As a result, individuals with serious brain injuries have little choice but to be admitted to nursing and rehabilitation facilities in order to have their basic needs met.
74. Nursing facilities arc not homelike environments. Most are large, selfcontained facililies, where available recreation, social activities, and medical care are provided in thc same building where residents live, sleep, and eat. Residents share bedrooms and bathrooms. Living areas lack privacy, are sparsely furnished, and do not provide space for the personal items or belongings one would normally associate with a home.
75. The congregate nature of these facilities limits residents' personal choices, individual expression, relationships, and freedom of association. Residents are often underoccupied and socially isolated, with limited exposure to the community or to age-appropriate peer groups. Opportunities to be outdoors or to participate in life outside the facility are limited or non-existent, except to the extent that family members can provide these opportunities for integration.
76. Because they are usually large, segregated, and isolated from the rest of society, nursing and rehabilitation facilities inhibit meaningful community involvement by depriving residents of the opportunity to interact with non-disabled people in non-custodial relationships in the community. Residents often are not able to express basic human preferences, such as what to eat and where to go, or to exercise basie human rights, such as voting, working, intimacy and privacy. Residents often are denied the experiences of observing and interacting with others, enjoying the dignity and freedom of living in the community, and participating in the rhythm and activities of community life.
22

77. Active speech, occupational and physical therapies generally are not provided on an ongoing basis in nursing facilities. The plaintiffs' inability to access medically necessary, ongoing rehabilitative services has limited their potential for continued recovery, while jeopardizing the maintenance oftheir physical and independent living skills.
78. Perhaps most devastating for the named plaintiffs, and the class of individuals they represent, is the reality that these nursing and rehabilitation facility placements are indefinite, with little prospect for accessing the kinds of community support services needed
I
to live in a less restrictive setting. 79. This lack of appropriate community support services, and the dependency on
institutional care that rcsults, forces the plaintiffs to reside in segregated settings, away from their children and families, away from their homes and communities, This isolation places an additional burden and strain on their families, who are sometimes forced to travel considerablc distances to spend time with their loved ones and to monitor their care.
2. Limitations on the state service system for individuals witlLbr"JJljl1jl,lries 80, There is no state agency specifically devoted to serving persons with brain injuries, In the absence of an agency with a mandate and mission to serve persons with brain injuries, the MRC has been arbitrarily assigned the duty to administer the Brain Injury Waivcr. In addition to its focus on vocational training and relatcd community services, MRC now also administers the small state program called BISSCS, formerly SHIP. This is the only state program that coordinates services for persons with traumatic brain injurics, It explicitly excludes those with other types of brain injuries,
81. Despite the size and scope of this obligation, srsscs's resources arc limited and
its network is wholly inadequate to meet the need for community-based services among persons
23

with brain injuries in Massachusetts. Applicants to BISSCS usually wait for years without receiving necessary services. Those residing in nursing and rehabilitation facilities usually never receive such services, and are arbitrarily excluded from the services they need to leave the institution. BISSCS' limited array of service options is insufficient to meet the needs of individuals seeking to transition from institutional settings to the community, effectively denying community access to nursing facility residents based on the severity of their disabilities.
82. Although Massachusetts' 1915 waiver was originally approved to serve 200 individuals per year, two years later, the defendants reduced the capacity oftbeir only waiver program for persons with brain injury 100. It fonnally renewed the program in 2004 at this reduced level, which remains in effect today. This reduction is not only unprecedented, since most States, including Massachusetts, usually seek increases in the capacity of their waivers, but also unjustified, since there were clearly more. rather than less, individuals with brain injuries who needed waiver services. The federal govemment approved this request in 2004. This HCBS waiver is now, and has always been, limited to persons with traumatic brain injuries, expressly excluding individuals whose injuries occurred as a result of an intemal medical condition, disease or stroke.
83. BISSCS' and the Massachusetts' HCBS traumatic brain injury waiver's categorical exclusion ofpcrsons with acquired brain injuries, leaves these individuals without any access to state or federally-funded, community-based supports, solely because of the nature and origin of their disability.
E. The Defendant's Responsibility for the UIII.ecessary Institutionalization of Per,~ons with Brain Injuries
84. The defendants have failed to provide adequate community support services to individuals with brain injuries. Indeed, they have categorically excluded individuals with
24

acquired brain injuries from accessing the only state and federally-funded programs delivering integrated community services.
85. Furtbennore, the defendants have failed to develop and implement a comprehensive plan for placing qualified persons with brain injuries in the community and avoiding their prolonged, unnecessary institutionalization. Instead, with full knowledge of the need and numbers of persons with brain injuries who arc urmecessarily institutionalized in nursing facilities, the defendants have administered the limited community programs that do exist in a manner whieh effectively excludes persons with serious brain injuries in nursing facilities. As a result. there have been few persons with brain injuries who have been able to leave nursing and rehabilitation facilities over the past decade. Instead, there is an increasing number of such individuals who are now needlessly segregated and even more who are at imminent risk of such segregation.
86. Moreover, by failing to provide a sufficient array of community settings and supports for persons with brain injuries, the defendants have effectively required such individuals to become institutionalized as a condition of obtaining long-tenn care.
87. The defendants have administered the state Medicaid system and its programs in a manner that perpetuates the segregation of persons with brain injuries. These methods of administration arbitrarily limit access to integrated, community support services by persons with brain injuries in nursing facilities. Specifically. limitations on the availability of Medicaidfunded, community support services result from:
(I) the lack of infonnation provided to individuals with brain injuries and their
families about community-based services and the Hess waiver specifically;
25

(2) inadequate assessments to determine an individual's ability to benefit from community support services;
(3) the failure to provide nursing and rehabilitation facility residents and their guardians with a meaningful choice of community as well as institutional servIces;
(4) the failure to offer meaningful access to the community services that are available, and the discriminatory exclusion of persons with severe brain injuries and/or acquired brain injuries from the few community services that do exist;
(5) decisions and actions that intentionally limit the number and availability of community services, including federal funding for such services;
(6) policies, procedures, restrictions and program definitions which unreasonably limit access to ongoing rehabilitative services for individuals with brain injuries; and
(7) inadequacies in thc funding of community support services, including the unreasonable refusal to seck available federal funding for such services, that the defendants are authorized to provide for Medicaid-eligible, individuals with brain 111Junes,
V. LEGAL CLAI~S 88, In their capacities as state officials, and under color of law, the defendants have
subjected the plaintiffs to prolonged and unnecessary institutionalization, resulting in violations of the ADA, Rehabilitation Act, and Medicaid Act.
Count I: The Americans with Disabilities Act The pJaintiffs re-allege paragraphs 1 through 88 as though fully set forth herein,
26

A. Violatioll ofthe A DA 's Illtegratioll llJalldate 89. The plaintiffs and the members ofthe plaintiff class are qualified individuals with disabilities within the meaning of the ADA. 42 U.S.C. § 12131(2). 90. Title II of the ADA requires that "a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.P.R. § 35.130(d). 91. The named plaintiffs and plaintiff class members qualify for the defendants' program oflong-term rehabilitative services, and would benefit from community support services. Although community programs are the most integrated setting appropriate to meet their needs, the plaintiffs remain institutionalized in nursing or rehabilitation facilities, or at imminent risk of such institutionalization. By denying them access to existing community programs, and by requiring that plaintiffs to be confined in the segregated institutional settings in order to receive rehabilitative services, defendants violate the ADA's integration mandate. 92. It would not fundamentally alter the defendants' programs, services, or activities to provide plaintiffs with the supports necessary to reside in the community. The defendants do not have a comprehensive, effectively working plan for serving people with brain injuries in the most integrated setting appropriate for their needs. B. Methods ofAdministration 93. Regulations implementing Title II of the ADA provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or
27

substantially impairing accomplishment of the objectives of the entity's program with respect to individuals with disabilities ...." 28 C.P.R. § 35.130(b)(3).
94. The defendants' criteria and methods of administering .Massachusetts' long-tenn care system for persons with brain injuries have subjected the plaintiffs to unnecessary and unjustified segregation. The defendants administer the only joint state and federally-funded programs for persons with brain injuries in a manner that fails to inform nursing and rehabilitation facility residents of the programs, fails to assess them for the programs, fails to offer them a choice of the waiver program, and fails to afford them equal access to these programs.
C. Discrimination Based on NlUure and Severity ofDisability 95. The ADA prohibits discrimination on the basis of disability. 42 U.S.c. § 12132 et seq. The defendants illegally discriminate against qualified persons with disabilities who reside in nursing and rehabilitation facilities based upon the nature and severity of their disability. Both the defendants' state and federally-funded community programs totally exclude persons with acquired brain injuries and effectively exclude those with the most serious brain injuries. 96. The exclusion of individuals with acquired brain injuries constitutes discrimination on the basis of disability and results in their continued, urmecessary segregation in violation of the ADA. The few community supports and services that are available in the Commonwealth are not of sufficient duration and intensity to allow those with serious brain injuries to transition from nursing and rehabilitation facilities to the community, thus discriminating against the plaintiff class based on the severity of their disabilities.
Count II: Section 504 of the Rehabilitation Act 97. The plaintiffs re-allege paragraphs I through 96 as though fully set forth herein.
28

98. The plaintiffs arc qualified individuals with disabilities under Section 504 of the Rehabilitation Act. 29 U.S.c. § 794(a).
99. EOHHS and its state agencies receive federal financial assistance. J00. The regulations accompanying Section 504 provide that: "[r]ecipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons:' 28 C.F.R. § 41.SI(d). 101. These regulations further prohibit recipients of federal financial assistance from "utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting handicapped persons to discrimination on the basis of handicap; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons." 28 C.F.R. § 41.51(b)(3); 45 C.F.R. § 84.4(b). 102. The named plaintiffs and plaintiff class members qualify for the defendants' program oflong-ternl rehabilitative services, and would benefit from community support services. Although the community is the most integrated setting appropriate to meet their needs, the plaintiffs remain institutionalized in nursing and rehabilitation facilities, or at risk of such institutionalization. By denying them access to existing community programs, and by requiring that plaintiffs and class members be confined in the segregated institutional settings in order to receive needed rehabilitative services, the defendants violate § 504. 103. The defendants' criteria and methods of administering their system of long-ternl services for people with serious brain injuries subject plaintiffs to illegal discrimination and unnecessary segregation.
29

104. It would not fundamentally alter the defendants' programs, services, or activities to provide the plaintiffs with the services necessary to allow them to live in the community.
Count HI: Title XIX or tbe Social Security Act 105. The plaintiffs re-allege paragraphs I through 104 as though fully set forth herein. 106. Title XIX requires states to provide Medicaid benefits to all eligible persons with reasonable promptness and for as long as medically necessary. 42 U.S.c. §§ J396a(a)(8); I396a(a)(l OleA). Medicaid waiver programs must be administered in a fair and efficient manner, must inform persons about the program, and must afford qualified persons a choice of program services. 42 U.S.C. § 1396n(c). Provision of services must not be delayed by the agencies' administrative procedures. 42 C.F.R § 435.930(a). 107. The defendants have failed to provide medically necessary, specialized therapies to eligible nursing home residents with reasonable promptness, in violation of 42 U.S.c. §§ 1396a(a)(8); I396a(a)(l OleA). 108. The defendants also have failed to provide residents of nursing and rehabilitation facilities with brain injuries: J) notice of, and equal opportunities to apply for, waiver serviees; 2) an assessment of their eligibility for such services; and 3) meaningful choice between institutional and HCB waiver services, in violation of 42 U.S.C. § 1396n(e). VI. PRAYERS FOR RELIEF WHEREFORE, the plaintiffs respectfully request that this Court: 1. Certify this ease a class action pursuant to Fed. R. Civ. P. 23; 2. Grant preliminary and permanent injunctive relief requiring the defendants to:
(I) inform residents of nursing and rehabilitation facilities, their guardians, families, and allmcmbers of the plaintiff class of all state and federally-funded programs that provide community services to persons with brain injuries; assess
30

all qualified residents of nursing and rehabilitation facilities for such programs; offer eligible residents a choice of such programs; and administer such programs in a manner that ensures equal access for such residents, regardless of the type or severity oftheir brain injuries; (2) develop and implement a comprehensive, effectively working plan that provides integrated, community settings and supports to residents of nursing and rehabilitation facilities with brain injuries and all members of the plaintiff class, regardless of the type or severity of their brain injuries; (3) implement such plan in a manner that ensures that any wait list for community settings and supports moves at a reasonable pace, so that all current nursing and rehabilitation facility residents with brain injuries and all members of the plaintiff class who would benefit from community placement are actually placed within five years; and (4) promptly provide Medicaid-covered rehabilitative services to residents with brain injuries in nursing and rehabilitation facilities for as long as medically necessary, in order to promote their rehabilitation and opportunities for community living and/or prevent the deterioration of their basic functioning. 3. Issue a declaratory judgment stating that the defendants have violated the Americans with Disabilities Act, the Rehabilitation Act, and the Social Security Act in their failure to prevent the unnecessary segregation and institutionalization of persons with brain injuries and their failure to provide community-based services to Medicaideligible individuals with brain injuries in nursing and rehabilitation facilities and other members of the plaintiff class.
31

4. Award the plaintiffs costs of this litigation and their reasonable attorneys' fees; and, 5, Grant such further and other relief as may be just and proper.

~~~I~A.T~O~EYS' .
~.- /"-~~ Steven J. Sc artz (BBO # 44;:;:8~44"'i1J)';:C­

Kathryn Rucker (B80# 644697)

Center for Public Representation

22 Green Street

Northampton, .\IIA 01060

(\. , 3J s,0? 413-586-6024

( t\\

\..J..~CvJ" L~._.''l ,~ _._._._..

Richard A. Johnston (8B0#253420)

Michael R. Dube (BBO # 654748)

Miranda Hooker (BBO # 661569)

Anne McLaughlin (BBO # 666081)

Wilmer Cutler Pickering Hale and Dorr, LLP

60 Slate Street

Boston, MA 02109

617-526-6000

Dated: May 17,2007

32

 </s> Case 3:07-cv-30084-MAP Document 35 Filed 09/26/07 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CATHERINE HUTCHINSON, by her guardian Sandy Julien ET AL,
Plaintiffs
v.
DEVAL L. PATRICK, Governor, ET AL,
Defendants

) ) ) ) ) ) C.A. No. 07-30084-MAP ) ) ) )

MEMORANDUM AND ORDER REGARDING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (Dkt. No. 16) September 26, 2007
PONSOR, D.J. This is an action under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 1201 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794(a), et seq., brought by five individuals with serious brain injuries and two non-profit organizations. Plaintiffs have moved for certification of a class comprising over 8,000 individuals with brain injuries, currently living in nursing and rehabilitation facilities in the Commonwealth of Massachusetts.

Plaintiffs’ Motion for Class Certification (Dkt. No. 16) is hereby ALLOWED.

Case 3:07-cv-30084-MAP Document 35 Filed 09/26/07 Page 2 of 3
The requirements of Fed. R. Civ. P. 23(a) have been satisfied. The so-called “numerosity” requirement is not contested. Moreover, there are common questions of law and fact regarding whether Defendants have violated the ADA and the Rehabilitation Act. The claims of the named Plaintiffs are typical of the claims of the class. Finally, Plaintiffs’ counsel would represent the class well, and there is no conflict among the interests of the various class members likely to arise. In the unlikely event that a conflict should appear, the court may address it at a later date.
In addition to the requirements under Rule 23(a), Plaintiffs have satisfied the requirement of Fed. R. Civ. P. 22(b)(2). Defendants have acted, or failed to act, on grounds generally applicable to the entire class, making final injunctive relief appropriate to the class as a whole.
A relatively minor issue regarding the wording of the class definition remained outstanding at the close of oral argument on September 24, 2007. Counsel are ordered to report to this court no later than October 1, 2007 regarding their negotiations on this issue.
It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR
-2-

Case 3:07-cv-30084-MAP Document 35 Filed 09/26/07 Page 3 of 3 U. S. District Judge
-3-

 </s> Case 3:07-cv-30084-MAP Document 39 Filed 10/04/07 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CATHERINE HUTCHINSON, by her guardian Sandy Julien ET AL,
Plaintiffs
v.
DEVAL L. PATRICK, Governor, ET AL,
Defendants

) ) ) ) ) ) C.A. No. 07-30084-MAP ) ) ) )

ORDER REGARDING CLASS DEFINITION
October 4, 2007
PONSOR, D.J.
On September 26, 2007, the court entered its order
allowing Plaintiff’s Motion for Class Certification (Dkt.
No. 35).
A minor disagreement remained following this ruling
regarding the precise definition of the class. Having now
reviewed the parties’ proposed alternate definitions, the
court orders that the class be defined as follows:
All Massachusetts residents who now, or at any time during this litigation: (1) are Medicaid eligible; (2) have suffered a brain injury after the age of 22; and (3) reside in a nursing or rehabilitation facility or are eligible for admission to such a facility.
The proposed fourth criterion, limiting the class to
persons who “would handle and benefit from community support

Case 3:07-cv-30084-MAP Document 39 Filed 10/04/07 Page 2 of 2 services,” suffers from the imprecision of the word “handle.” In addition, this fourth criterion would generate a constantly changing class, as members’ medical conditions improved or declined.
It should be noted, despite the definition of the class, that it is unlikely that the court would permit class members to have any remedy resulting from this litigation forced upon them against their will, or be placed in positions where their health or safety would be at risk.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
-2-

 </s> Case 3:07-cv-30084-MAP Document 53 Filed 09/18/08 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CATHERINE HUTCHINSON, by her guardian Sandy Julien ET AL,
Plaintiffs
v.
DEVAL L. PATRICK, Governor, ET AL,
Defendants

) ) ) ) ) ) C.A. No. 07-30084-MAP ) ) ) )

ORDER APPROVING FINAL COMPREHENSIVE SETTLEMENT AGREEMENT September 18, 2008
PONSOR, D.J. On June 13, 2008, the court preliminarily approved the
Comprehensive Settlement Agreement and Notice to the Class. No objections have been submitted by any class member or guardian. After reviewing the parties’ memoranda and affidavits, and pursuant to a Fairness Hearing held on July 25, 2008, the court finds that the Comprehensive Settlement Agreement is fair, reasonable, and adequate.
Therefore, the court approves the Comprehensive Settlement Agreement, noting that the parties agree that this agreement does not constitute a consent decree, and that the court will retain jurisdiction over the case. The court orders that this case not be closed and that judgment not enter pending compliance with the terms of the

Case 3:07-cv-30084-MAP Document 53 Filed 09/18/08 Page 2 of 2 Comprehensive Settlement Agreement.
It is So Ordered. /s/ Michael A. Ponsor MICHAEL A. PONSOR U. S. District Judge
-2-

 </s> Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CATHERINE HUTCHINSON, by her guardian Sandy Julien, ET AL., Plaintiffs
v.
DEVAL L. PATRICK, ET AL., Defendants

) ) ) ) ) ) C.A. NO. 07-CV-30084-MAP ) ) )

MEMORANDUM AND ORDER REGARDING MOTION FOR ATTORNEY FEES AND COSTS
(Dkt. No. 59) February 8, 2010 PONSOR, D.J. I. INTRODUCTION Plaintiffs, institutionalized individuals with severe brain injuries, filed a class-action suit against Defendants on May 17, 2007 to secure improved home and community-based services from the Commonwealth of Massachusetts. A class was certified on September 26, 2007 (Dkt. No. 35), and the Commonwealth subsequently agreed to provide some of the additional and improved services Plaintiffs sought. The case settled with the

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 2 of 20
court's approval on September 18, 2008. (Dkt. No. 53.) Plaintiffs now move for an award of attorneys’ fees
under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12205. (Dkt. No. 59.) Defendants oppose. (Dkt. No. 67.) For the reasons set forth below, the court will allow Plaintiffs’ motion and award the fees and costs requested.
II. BACKGROUND Plaintiffs’ suit alleged violations of the ADA, 42 U.S.C. §§ 12101 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794(a) et seq., and Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)10 (A), and 1396n(c). (Dkt. No. 7, Am. Compl. ¶¶ 98-118.) In the order approving settlement (the “Order”), the court specified, at the parties' behest, that it was not entering a consent decree. The court also specified (1) that it was retaining jurisdiction over the case so as to ensure the parties' timely compliance with the terms of the agreement, and (2) that final judgment would not enter "pending compliance" with such terms. (Dkt. No. 53.) The resulting Final Comprehensive Settlement
2

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 3 of 20
Agreement (the “Agreement”) likewise provided that the court would retain jurisdiction to adjudicate potential compliance disputes. (Dkt. No. 42, Attach. 1 ¶ 40.) It also outlined a series of procedures Plaintiffs had to follow in the event of disputes, including a requirement that Plaintiffs participate in mediation before seeking an enforcement order from the court. Id. ¶ 42.
Although the Agreement was clear that the court could not, in the first instance, find Defendants in contempt based on a finding of non-compliance, the court’s discretion was otherwise quite broad; its remedial order was required only to be “consistent with equitable principles.” Id. ¶ 43. If Defendants did not comply with the court’s first remedial order, the court was authorized thereafter to “apply equitable principles and . . . use any appropriate equitable or remedial power then available to it.” Id. ¶ 44. The Agreement made clear that, at this final stage of the enforcement process the court would have the power, if necessary, to enter an order of contempt.
The Agreement also allowed Plaintiffs to recommence
3

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 4 of 20
litigation in the event that Defendants proved unable or unwilling to comply with its terms. Id. ¶ 47. Finally, it made clear that modifications to the terms of the Agreement could not be unilateral; they required mutual agreement and the approval of the court. Id. ¶ 48.
As noted, Plaintiffs now seek an award of attorneys’ fees. Defendants oppose the request on two grounds: first, Plaintiffs were not the "prevailing parties," within the meaning of the statute; second, the requested fees are excessive. The first argument is unpersuasive as a matter of law, the second as a matter of fact.
III. DISCUSSION A. Prevailing-Party Status
1. Legal Background The ADA provides for attorneys’ fees as follows: In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. 42 U.S.C. § 12205 (emphasis added). The Supreme Court set the standard for prevailing-party status in Buckhannon
4

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 5 of 20
Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598 (2001).1 Buckhannon held that a plaintiff was not a prevailing party unless there had been both a "material alteration of the legal relationship of the parties" and "a judicial imprimatur on the change." Id. at 604-5. It was not sufficient that the lawsuit was a "catalyst" in changing the parties' legal relationship. Id. Here, it is undisputed that the Agreement materially altered the legal relationship of the parties. At issue in this case is Buckhannon’s "judicial imprimatur" criterion.
It is well established that a judgment on the merits and a consent decree both confer sufficient judicial imprimatur to satisfy the Supreme Court’s requirement for an entitlement to fees. Buckhannon, at 605. However, Buckhannon did not specify whether these were the sole
1 Buckhannon involved two separate fee-shifting statutes: the Fair Housing Amendments Act of 1988 (FAA), 42 U.S.C. § 3613(c), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205. However, the Buckhannon holding was broadly applicable. Courts have applied the Supreme Court's "prevailing party" jurisprudence to all federal feeshifting statutes that use the "prevailing party" terminology. See Doe v. Boston Public Schools, 358 F.3d 20, 25 (1st Cir. 2004).
5

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 6 of 20
mechanisms of judicial imprimatur or whether some other
disposition, short of a judgment or a consent decree,
might also suffice.2 The circuit courts construing
Buckhannon have answered this question in a variety of
ways, with the majority of circuits declining to limit
prevailing-party status only to plaintiffs who obtain a
judgment on the merits or a consent decree. Currently,
the Eighth Circuit alone interprets Buckhannon to preclude
recovery of attorneys’ fees absent a judgment on the
merits or a consent decree. Christina A. v. Bloomberg,
315 F.3d 990, 993 (8th Cir.2003) (“a party prevails only
if it receives either an enforceable judgment on the
2 Buckhannon holds only that “the catalyst theory is not a permissible basis for the award of attorney’s fees under the FHAA and ADA.” Buckhannon, at 610 (internal citations omitted). In his concurrence, Justice Scalia observes that, in a number of cases cited in Justice Ginsberg’s dissent, the traditional concept of a “prevailing party” overlapped with the set of plaintiffs who had earned “a judicial finding -- or its equivalent, an acknowledgment by the defendant -- of the merits of plaintiff’s case.” Id. at 612 (Scalia, J., concurring). Justice Scalia suggests such cases would continue to sustain an action for fees under Buckhannon. Id. Justice Ginsberg, speculating on what might constitute this equivalent “acknowledgment” by a defendant, took the position that the majority opinion foreclosed the possibility that settlement alone might suffice. Id. at 632 n.8 (Ginsberg, J., dissenting).
6

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 7 of 20
merits or a consent decree”). However, the D.C., Second, Third, Fourth, Seventh, Ninth, Eleventh, and Federal Circuits all interpret Buckhannon less narrowly. See Davy v. CIA, 456 F.3d 162 166 (D.C. Cir. 2006); Roberson v. Giuliani, 346 F.3d 75, 81 (2nd Cir. 2003); Truesdell v. Philadelphia Housing Authority, 290 F.3d 159, 165 (3rd Cir. 2002); Truesdell v. Philadelphia Housing Authority, 290 F.3d 159, 165 (3rd Cir. 2002); Smyth ex. Rel. Smyth v. Rivero, 282 F.3d 268, 281 (4th Cir. 2002); T.D. v. LaGrange School Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003); Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1134 n.5 (9th Cir. 2002); American Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir. 2002); and Rice Services, Ltd. v. U.S., 405 F.3d 1017, 1025 (Fed. Cir. 2005).
The circuits adopting a more generous interpretation of Buckhannon articulate various “judicial imprimatur” standards. For example, in the D.C. Circuit and the Third Circuit, a party “prevails” when the court issues an order that (1) contains mandatory language, (2) is entitled an “order,” and (3) bears the district judge's signature, not
7

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 8 of 20
those of the parties' counsel. Davy, at 162; Truesdell, at 165. In the Federal, Fourth, and Seventh Circuits, a party “prevails” upon obtaining an order that is analogous to, or the functional equivalent of, a judgment or consent decree. Rice Services, at 1025; Smyth, at 281; T.D. v. LaGrange, at 478. In the Ninth Circuit, a plaintiff “prevails” upon entering into a legally enforceable settlement agreement. Barrios, at 1134.
The First Circuit has joined the majority of its sister circuits in declining to interpret Buckhannon narrowly and in articulating its own “judicial imprimatur” standard. In the recent case of Aranov v. Napolitano, 562 F.3d 84 (1st Cir. 2009) (en banc), the First Circuit held that a plaintiff may be a prevailing party if he or she has obtained a court order in a context evidencing the sort of judicial involvement typically found where there is a court-ordered consent decree. Aranov, at 90.3 The court pointed to three key characteristics it associated
3 The First Circuit had previously declined to take a position on “whether a party could prevail under Buckhannon in the absence of a consent decree or a final judgment on the merits.” See Smith v. Fitchburg Public Schools, 401 F.3d 16, 23 (1st Cir. 2005).
8

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 9 of 20
with such judicial involvement: (1) a "court-ordered" change in the legal relationship of the parties, (2) judicial approval of the relief "vis-à-vis the merits of the case," and (3) ongoing judicial oversight and the ability of the court to enforce the obligations imposed on the parties. Id.4
Here, Plaintiffs argue that the court’s order approving the Agreement exhibits all three Aranov characteristics and therefore has sufficient “judicial imprimatur” to support their claim for fees. Defendants, for their part, argue that the court should not look to the three Aranov factors. They contend that Plaintiffs, having explicitly agreed that the Order was not a consent decree, cannot now point to consent-decree-like features to support their claim for fees. (Dkt. No. 67, Defs.' Mem. in Opp’n to Mot. for an Award of Att’ys’ Fees 9-10.).
Defendants are, to a certain extent, boxed into this awkward advocacy position by the fact that Aranov came down
4 The Aranov court applied these factors to find that the plaintiff was not the prevailing party because the remand to a federal agency lacked sufficient judicial imprimatur.
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after the Agreement in this case was signed. Thus, while Defendants' argument against applying the Aranov factors scores points as a brave effort, it is unconvincing. Aranov specifically holds that "it is the reality, not the nomenclature which is at issue" in identifying a prevailing party. Aranov, at 90. A careful reading of the Order reveals that the Aranov decision strongly supports Plaintiffs’ claim for fees.5
2. The Order and the Aranov Factors The first Aranov factor asks whether the legal relationship of the parties altered specifically because of the court order. Aranov, at 91. In this case, if the court had not approved the Agreement, the extension of home-based services to individuals with brain injuries would not have occurred. As the Agreement states, “[i]f the Court does not approve this Settlement Agreement in all respects, the Agreement shall be null and void.” (Dkt. No.
5 The Second Circuit, in a recent decision, has also found sufficient judicial imprimatur to support an award of attorneys’ fees where the governing settlement agreement explicitly states that it is not a consent decree. Perez v. Westchester County Dep’t of Corrections, —- F.3d --, 2009 WL 3855703 at *4 and *7-9 (2d Cir. 2009).
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Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 11 of 20
42, Attach. 1, Final Comprehensive Settlement Agreement ¶ 39.) Thus, the first Aranov factor has been met.
The second Aranov factor involves an “appraisal of the merits.” Aranov, at 91. This element simply requires the judge issuing the order to "examine its terms to be sure they are fair and not unlawful." Aranov, at 91. Fed. R. Civ. P. 23(e) requires judicial approval of a proposed class-action settlement and a judicial finding that the proposal is “fair, adequate and reasonable,” City Partnership Co. v. Atlantic Acquisition Ltd. Partnership, 100 F.3d 1041, 1043 (1st Cir. 1996) (citing Durrett v. Housing Authority of the City of Providence, 896 F.2d 600, 604 (1st Cir. 1990)). Because Rule 23(e) requires the same inquiry into the merits as Aranov, a judicial finding under Rule 23(e) meets the second Aranov requirement.
Defendants imply that the court should not take into account the operation of Rule 23(e) in evaluating the second prong of Aranov. Such analysis, they suggest, would transform into a prevailing party every certified classaction plaintiff who settles.
The implication is incorrect. While court-approved
11

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 12 of 20
settlement of a certified class will probably meet the Aranov evaluation-of-the-merits prong, the third Aranov prong, ongoing enforcement authority, will not be automatically met. Some class actions may terminate with the payment of money immediately upon settlement. Others with a more involved remedy may specifically deprive the certifying court of future jurisdiction by limiting enforcement to another venue.
For these reasons, the court does not share Defendants’ fear that its second-prong analysis would expose every defendant who settles a certified class action to liability for attorneys’ fees. Accordingly, the second Aranov factor has been met.
The third Aranov factor asks whether (1) there is an “obligation [of the parties] to comply and (2) whether this obligation is subject to “judicial oversight to enforce that obligation.” Aranov, at 91.
The “compliance” obligation is generally satisfied if the terms of an agreement are mandatory and not subject to change absent approval by a court. Id. (citing Fed. R. Civ. P. 60(b) and Rufo v. Inmates of Suffolk County Jail,
12

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 13 of 20
502 U.S. 367, 378-83 (1992)). Rule 60(b) only requires a motion and court approval to modify a court order, whereas the Agreement requires the consent of the non-moving party as well. (Dkt. No. 42, Attach. 1, Final Comprehensive Settlement Agreement ¶ 48.) Because the Agreement is even more insulated against modification than a standard court order, the requirement of a “compliance” obligation is manifestly satisfied here.
The “enforcement” obligation also requires a settlement agreement to be enforceable through some other means than a breach of contract action. Aranov, at 91. Defendants argue that the enforcement procedures in the Agreement are too circumscribed to satisfy this requirement. During oral argument, Defendants proposed that the procedures in the Agreement merely lay out a venue provision. In the event of noncompliance, Defendants argued, the court might in its discretion order specific performance, and this is essentially a contractual remedy, insufficient under Aranov.
Defendants’ argument mischaracterizes the court’s authority under the Agreement. From the very first motion
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Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 14 of 20
to enforce, the court has authority to enter any order (short of contempt) that is “consistent with equitable principles.” (Dkt. No. 42, Attach. 1 ¶ 43.). The court is not limited to remedies appropriate in breach of contract actions. If Defendants do not comply with the court’s enforcement order, the court’s authority expands further, and the court may use “any appropriate equitable or remedial power then available to it.” Id. ¶ 44. The court’s authority extends well beyond the remedies of specific performance and expectation damages traditionally associated with a breach of contract action. It is therefore sufficient to meet the enforcement requirement.
Defendants also argue that, unless contempt is available as an enforcement mechanism of first resort, the court’s enforcement authority is insufficient to satisfy Aranov. This argument overstates the significance of a first-order contempt proceeding. Aranov merely requires that the settlement include a “form of specific relief, which may ultimately be enforceable by contempt.” Aranov, at 91 (emphasis added). This requirement -- that a contempt order must be available “ultimately” -- is met in
14

Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 15 of 20
this case, where the court may issue a contempt order upon a showing that its enforcement order has been disregarded.
Defendants’ follow-up argument that the Order itself must articulate a specific enforcement mechanism, and fails to do so, overlooks the implications of the court’s retention of jurisdiction. A district court that retains jurisdiction retains full enforcement authority. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994), cited in Buckhannon, at 604 n.7; Aranov, at 93). This court retained jurisdiction. (Dkt. No. 53, Order Approving Final Comprehensive Settlement Agreement.) Thus, even if the Agreement contained no specific procedures governing enforcement, this court would have sufficient authority to enforce the Agreement upon a motion from either party. The Order itself confers such authority by its own terms and without incorporating the Agreement.
Finally, the argument that the Order itself must be enforceable misunderstands the scope of the Aranov inquiry. Aranov requires the court to evaluate "the content of the order against the entire context before the court." Aranov, at 90. The Agreement is part of such context.
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Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 16 of 20
Moreover, the Fourth Circuit, which the First Circuit cites positively in articulating its “oversight and enforcement” prong, does not require “the order itself” to be the equivalent of a consent decree. See Aranov, at 91 (“an obligation to comply and the provision of judicial oversight to enforce that obligation are the sine qua non for a consent decree”) (citing Smyth v. Rivero, 282 F.3d 268, 279-81 (4th Cir. 2002)). The Fourth Circuit asks whether the agreement and the order are "in combination, equivalent to a consent decree." Smyth, at 274 (emphasis added).
Because the Agreement is enforceable and this court has ongoing jurisdiction to enforce it, the third Aranov factor has been met.
3. Timing of Motion for Fees. Defendants also argue that the motion for attorneys’ fees is premature, that, until a final judgment has issued or the court has dismissed the case, there can be no prevailing party. The cases Defendants cite in support of their argument, however, all arise from litigation that was actually ongoing at the time the motion for fees appeared.
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Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 17 of 20
In Hanrahan v. Hampton, 446 U.S. 754, 758-59 (1980), the plaintiffs were denied prevailing-party status after having defeated a motion to dismiss. In Sole v. Wyner, 551 U.S. 74, 86 (2007), the plaintiff, despite having secured a preliminary injunction, was denied prevailing-party status because she was denied a permanent injunction. Defendants cite no cases in which an order issued settling the case and the motion for fees was nonetheless found to be premature.
Moreover, Defendants' timing argument runs counter to the holdings in Buckhannon and Aranov, both of which permit the grant of fees when an enforceable settlement is approved with sufficient judicial imprimatur, and neither of which limits the definition of “prevailing parties” to cases where a final judgment has entered. In this case, the full satisfaction of the terms of the Agreement will take many years. It would be both unfair to Plaintiffs and burdensome to judicial administration to delay consideration of the fee issue until the ordered, and agreed, remedy has been implemented in full.
B. Reasonableness of Requested Fees
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Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 18 of 20
The issue of the reasonableness of Plaintiffs’ fee request does not require extended discussion. Plaintiffs seek an award of attorneys’ fees in the amount of $775,136 and of expenses in the amount of $10,987. For a case of this importance and difficulty, with the extremely beneficial results for this vulnerable class of citizens, this request is eminently fair. Significantly, both figures represent a substantial voluntary reduction of what might easily have been claimed. As Plaintiffs’ submission confirms, the classic “lodestar” analysis might have produced a defensible fee claim exceeding $1.1 million and a request for costs of over $50,000. The court will not penalize counsel for their laudable restraint.
Addressing Defendants’ specific objections, the court finds as follows. First, the limited hours claimed for work done during the pre-filing phase of this case was justified by the need for preparation and the reasonable hope for a non-litigated resolution. Second, Defendant’s opposition during the months following filing made the commitment of attorneys and attorney time on Plaintiffs’ side both necessary and inevitable. The voluntary
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Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 19 of 20

elimination of several attorneys from the fee request and the substantial reduction in claimed time rebuts any defense objections for over-lawyering or excessive hours. See Rosie D. v. Patrick, 593 F. Supp. 2d 325, 330 (D. Mass. 2009). The hourly rates are well supported by knowledgeable affiants and consistent with rates approved in similar cases. Again, the court notes that counsel from the firm Wilmer Hale substantially reduced their normal rates. Compensation for travel time of two of Plaintiffs’ counsel at one-half the reasonable rate reflected the necessities of the case.
For the foregoing reasons the court hereby awards fees as follows:

Rate

Steven Schwartz $425

Kathryn Rucker $212

Richard Johnston $425

Robert Mahoney $345

Stephen Muller $347

Michael Dube

$328

Miranda Hooker $300

Anne McLaughlin $250

Hours 583.7 646 164.2 124.3 42.6 264.8 122.4 440.3

Award $232,836 $181,200 $ 69,785 $ 42,884 $ 14,782 $ 86,854 $ 36,720 $110,075

In addition, as noted the court awards costs in the amount of $10,986.75. The fees and costs as ordered will

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Case 3:07-cv-30084-MAP Document 73 Filed 02/08/10 Page 20 of 20 be tendered, absent an appeal, within sixty days of this memorandum.
IV. CONCLUSION Based on the foregoing, Plaintiffs’ Motion for Attorney Fees and Costs (Dkt. No. 59) is hereby ALLOWED. It is So Ordered.
/s/ Michael A. Ponsor MICHAEL A. PONSOR U.S. District Judge
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 </s> Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 1 of 32
United States Court of Appeals
For the First Circuit
No. 10-1268 CATHERINE HUTCHINSON, BY HER GUARDIAN, SANDY JULIEN, ET AL., Plaintiffs, Appellees, v. DEVAL L. PATRICK, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS, ET AL., Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before Lynch, Chief Judge, Selya and Howard, Circuit Judges.
Jennifer Grace Miller, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellants.
Steven J. Schwartz, with whom Kathryn Rucker, J. Paterson Rae, Center for Public Representation, Richard A. Johnston, Michael R. Dube and WilmerHale were on brief, for appellees.
Jeffrey S. Follett, Brian P. Bialas, and Foley Hoag LLP on brief for AARP, Center for Law and Education, Inc., Lawyers' Committee for Civil Rights Under Law, National Consumer Law Center, Inc., National Health Law Program, Inc., Public Citizen, Inc., The Judge David L. Bazelon Center for Mental Health Law, National Disability Rights Network, Inc., Public Justice, P.C., Women's Bar Association of Massachusetts, Massachusetts Law Reform Institute, Inc., ARC Massachusetts, Inc., American Civil Liberties Union

Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 2 of 32
Foundation of Massachusetts, Disabilities Rights Center, Inc., Disability Law Center, Inc., Disability Rights Center, Greater Boston Legal Services, Inc., Legal Assistance Corporation of Central Massachusetts, Rhode Island Disability Law Center, Inc., South Coastal Counties Legal Services, Inc., and Western Massachusetts Legal Services, Inc., amici curiae.
February 17, 2011

Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 3 of 32
SELYA, Circuit Judge. This appeal requires us to consider the circumstances under which a litigant who obtains significant relief through a court-approved settlement, rather than a verdict or a formal consent decree, may achieve "prevailing party" status and, thus, become eligible for an award of attorneys' fees under a typical federal fee-shifting statute. The appeal also requires us to consider when, short of the entry of a final judgment, "prevailing party" status may attach.
These questions (and the other questions before us) arise in the following setting. After the parties reached a negotiated settlement resolving the substance of a complicated class action, the district court awarded the plaintiffs attorneys' fees and expenses totaling over three-quarters of a million dollars. The defendants appeal, asseverating that the district court improperly characterized the plaintiffs as prevailing parties; acted prematurely in arriving at that conclusion; and to add insult to injury, set the amount of the award too generously. We conclude that the district court appropriately characterized the plaintiffs as prevailing parties, that the relief obtained was sufficiently final to justify a fee award, and that the court acted within the purview of its discretion in fixing the amount. Consequently, we affirm.
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I. BACKGROUND On May 17, 2007, the named plaintiffs — several
individuals with acquired brain injuries who qualify for long-term care services under the Medicaid program and two organizations devoted to their cause (the Brain Injury Association of Massachusetts and the Stavros Center for Independent Living) — filed suit to compel the defendants — various officials of the Commonwealth of Massachusetts (collectively, the Commonwealth) — to comply with Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the reasonable promptness provision of the Medicaid program as set forth in the Social Security Act, 42 U.S.C. § 1396a(a)(8), (a)(10)(A), by offering services and programs for individuals with acquired brain injuries in integrated community settings. The Commonwealth filed an answering motion, which triggered a spate of motion practice.
On July 13, 2007, the plaintiffs moved for class certification. They then served an array of discovery requests. The Commonwealth cross-moved to stay discovery pending a decision on class certification. The district court granted a stay.
On September 26, 2007, the court certified a class. Shortly thereafter, the parties began settlement negotiations in earnest and agreed to suspend discovery while negotiations proceeded. The talks proved fruitful and, on May 30, 2008, the
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 5 of 32
parties executed a settlement agreement (the Agreement) that they described as "final" and "comprehensive."
In terms, the Agreement required the Commonwealth, over a period of years, to expand community services (residential and non-residential) for Medicaid-eligible individuals with acquired brain injuries. To this end, the Commonwealth is charged with developing several new projects and programs. The Commonwealth's responsibilities are, however, subject to its ability to secure both funding from the state legislature and necessary approvals from the federal government. With respect to these matters, the Agreement impresses an obligation on the Commonwealth to use best efforts. If the Commonwealth is unable to obtain funding or approvals and the Agreement stalls, either side may move to vacate the settlement so that the plaintiffs can litigate the case.
The Agreement contemplates that the case will remain open for a period of years while the Commonwealth performs thereunder; it authorizes dismissal of the action only after the Commonwealth has completed certain specified obligations and is found to be in "substantial compliance" with the Agreement's terms. The Agreement further provides that the district court "shall retain jurisdiction to hear and adjudicate noncompliance motions."
Because the district court had certified a class, the Agreement required judicial approval. See Fed. R. Civ. P. 23(e). The parties jointly moved for this approval and, after a
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 6 of 32
preliminary fairness hearing, the district court allowed the approval process to move forward. The court acknowledged, at the Commonwealth's urging, that the Agreement memorialized a settlement and was not tendered as a consent decree.
After the class members were notified of the proposed settlement, see Fed. R. Civ. P. 23(e)(1), the district court held a final fairness hearing. The court again noted that the Agreement "does not constitute a consent decree but is a settlement agreement of this disputed case." The plaintiffs suggested that the court approve the Agreement by entering it as a court order, but the Commonwealth objected. The court expressed its willingness to indicate, either orally or through a written order, its finding that the Agreement represented a fair and appropriate resolution of the matter. It then asked the parties to submit a draft of a proposed order for approval of the Agreement.
On July 29, 2008, each side submitted a proposed order. The parties disagreed as to whether the court needed explicitly to retain jurisdiction as a means of facilitating subsequent enforcement of the Agreement. In an effort to achieve a meeting of the minds, the district court suggested the following language:
[T]he court approves the comprehensive settlement agreement. This case will not be closed and judgment will not enter pending compliance with the terms of the settlement agreement.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 7 of 32
This suggestion did not please anyone. The plaintiffs feared that, without language explicitly retaining enforcement jurisdiction, the court's authority might be questioned in the event that further compliance proceedings become necessary. For its part, the Commonwealth expressed concern that the court's words might be transformed into the functional equivalent of a consent decree. The Commonwealth noted that, in the course of settlement negotiations, it had consistently maintained its unwillingness to resolve the case by means of "a document that could be functionally a consent decree."
Faced with this impasse, the district court took the matter under advisement. On September 18, 2008, the court, acting without further input from the parties, entered a final approval order. The order states in pertinent part:
[T]he court finds that the Comprehensive Settlement Agreement is fair, reasonable, and adequate. Therefore, the court approves the Comprehensive Settlement Agreement, noting that the parties agree that this agreement does not constitute a consent decree, and that the court will retain jurisdiction over the case. The court orders that this case not be closed and that judgment not enter pending compliance with the terms of the Comprehensive Settlement Agreement. The entry of the approval order set the stage for the developments leading to this appeal. The plaintiffs, claiming to be prevailing parties, moved for an award of attorneys' fees
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 8 of 32
(including costs) in the amount of $786,123.1 The Commonwealth disputed the "prevailing party" characterization, the timing of the motion for fees, and the reasonableness of the requested award. The district court found that the plaintiffs were prevailing parties, that fees were presently allowable, and that the amount sought was "eminently fair." Accordingly, it awarded the plaintiffs the full amount sought. This timely appeal followed. II. ANALYSIS
The Commonwealth prosecutes this appeal on three fronts. First it asserts that the plaintiffs are not prevailing parties and that, therefore, they are not entitled to a fee award. Second, it questions the timing of the plaintiffs' quest for fees. Its fallback position is that, even if we find its first two points unconvincing, the district court nevertheless committed an abuse of discretion in determining the size of the award. We consider these assertions sequentially.
A. Prevailing Party Status. We review a determination of "prevailing party" status de novo. Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir. 2009) (en banc); Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 21 (1st Cir.
1 The plaintiffs' motion was, by its terms, brought "pursuant to 42 U.S.C. § 1988 and 42 U.S.C. § 12205." The language of these two fee-shifting provisions is virtually identical in all material respects. Following the lead of the parties and the district court, we treat the ADA's fee-shifting provision, 42 U.S.C. § 12205, as the operative statute.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 9 of 32
2005). Fee-shifting statutes represent a departure from the historic American rule, which dictates that parties to a case normally will bear their own counsel fees and costs. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). When, as in this case, the application of such a statute cuts through the government's traditional sovereign immunity, it "must be construed strictly in favor of the government." Aronov, 562 F.3d at 88 (citing Ardestani v. INS, 502 U.S. 129, 137 (1991)).
The text of the ADA's fee-shifting provision reads in its entirety:
In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual. 42 U.S.C. § 12205. When used in a federal fee-shifting statute, "the term 'prevailing party' [is] a legal term of art." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001). The concepts that shape the term apply broadly to the entire universe of federal fee-shifting statutes.2 See Smith, 401 F.3d at 22 n.8; Doe v. Boston Pub. Sch., 358 F.3d 20, 25 (1st Cir. 2004).
2 In any event, the key precedent is Buckhannon, and the Court there dealt in part, as we do here, with the ADA's fee-shifting provision, 42 U.S.C. § 12205. See Buckhannon, 532 U.S. at 601.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 10 of 32
To qualify as a prevailing party, a litigant must show that a material alteration of the parties' legal relationship has taken place as a result of the litigation. Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). In addition, a party must demonstrate that the alteration possesses a "judicial imprimatur." Buckhannon, 532 U.S. at 605 (emphasis in original). We need only discuss the second of these requirements here, as the Commonwealth asserts that the "plaintiffs have failed to satisfy the judicial imprimatur requirement."
The Buckhannon Court identified only two situations in which this judicial imprimatur requirement would necessarily be satisfied: where the plaintiff "received a judgment on the merits" or where she "obtained a court-ordered consent decree." Id. The Justices left open the question of whether (and if so, under what circumstances) a court-approved settlement that is not embodied in a formal consent decree may serve as the gateway to "prevailing party" status. The case at hand requires us to ponder this question.
We do not write on a pristine page: our recent en banc opinion in Aronov provides guidance. There, we indicated that an order short of a formal consent decree might be sufficient for this purpose. 562 F.3d at 90. We emphasized, however, that this inquiry must focus on substance, not form. It follows that it is the function of the order that carries the most weight in
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 11 of 32
determining whether it may serve as the linchpin for "prevailing party" status. See id. (explaining that "it is the reality, not the nomenclature which is at issue"); see also id. at 90 n.7 (collecting cases from other circuits reaching the same conclusion). Thus, rather than look exclusively at the label attached to a particular order, an inquiring court must consider "whether the order contains the sort of judicial involvement and actions inherent in a 'court ordered consent decree.'" Id. at 90.
The Commonwealth argues that Aronov directs us to ignore the Agreement itself and look exclusively at the approval order when mulling whether the order contains elements inherent in a conventional consent decree. That is too crabbed a reading of Aronov. Indeed, such a myopic approach would be at odds with Aronov's instruction that "[w]hether an order contains a sufficient judicial imprimatur can only be determined by determining the content of the order against the entire context before the court." Id. at 92 (emphasis supplied); cf. Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 279 (4th Cir. 2002) (examining whether agreement and dismissal order "were, in combination, equivalent to a consent decree"). We thus construe the approval order in light of both the content of the Agreement itself and its entire context.
Our inquiry looks to three factors. The first factor is whether the change in the legal relationship between the parties was "court-ordered." Aronov, 562 F.3d at 90 (quoting Buckhannon,
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 12 of 32
532 U.S. at 604). The second factor is whether there was "judicial approval of the relief vis-à-vis the merits of the case." Id. The third factor is whether there exists continuing "judicial oversight and ability to enforce the obligations imposed on the parties." Id. We start with a determination of whether the change in legal relationship is court-ordered.
The Agreement itself specifically provides that, in the absence of court approval, "the Agreement shall be null and void and of no force and effect." Hence, it is the approval order that makes the provisions of the Agreement binding on the parties and gives bite to their reciprocal obligations. In other words, this is a situation in which the court order triggers the change in the relationship between the parties, not one in which "the court merely recognizes what the government has voluntarily agreed to do and only 'requir[es] [the government] to follow through.'" Id. at 93 (alterations in original) (quoting Smith, 401 F.3d at 27). Given this reality, we find that the court's involvement is sufficient to satisfy the first prong of the inquiry.
The second prong of the inquiry requires us to determine whether there has been "judicial approval of the relief vis-à-vis the merits of the case." Id. at 90. Under the Civil Rules, a court must approve a settlement in a class action and is directed to do so only if it finds the terms of the settlement "fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2); see Nat'l
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 13 of 32
Ass'n of Chain Drug Stores v. New Engl. Carpenters Health Benefits Fund, 582 F.3d 30, 44 (1st Cir. 2009). This is strikingly similar to a court's role in entering a consent decree — a role that requires a court to ensure that the terms of the proposed decree "are fair and not unlawful." Smyth, 282 F.3d at 280.
This background informs the meaning of the phrase "appraisal of the merits" in the "prevailing party" context. On the facts here, the district court, while evaluating the fairness of the settlement under Rule 23(e)(2), engaged in a sufficient appraisal of the merits for purposes of the imprimatur requirement.
In the process of approving the Agreement, the court complied fully with the requirements of Rule 23(e)(2). It held multiple hearings during which it displayed its familiarity with the terms of the Agreement. At the hearing held on July 25, 2008, the court expressed its satisfaction that the interests of the plaintiff class had been adequately considered. The court's extended engagement with the substance of the Agreement easily distinguishes this case from the virtually nonexistent review conducted in Aronov, 562 F.3d at 87, where the district court merely entered an electronic docket entry granting the agreed motion to remand. For these reasons, we conclude that a sufficient appraisal of the merits occurred.
This leaves the third prong of the inquiry, in which we ask whether there exists "an obligation to comply and the provision
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 14 of 32
of judicial oversight to enforce that obligation." Id. at 91 (citing Smyth, 282 F.3d at 279-81); see Petersen v. Gibson, 372 F.3d 862, 866-67 (7th Cir. 2004) (holding that "a settlement short of a consent decree may qualify [as a basis for prevailing party status] if . . . the order provided that the court would retain jurisdiction to enforce the terms of the settlement").
In the approval order, the district court expressly retained jurisdiction over the case. This fits tongue and groove with the terms of the Agreement, which makes pellucid the parties' shared desire that the court "retain jurisdiction to hear and adjudicate noncompliance motions" on a going-forward basis. Finally, the approval order instructs that the "case not be closed and that judgment not enter pending compliance with the terms of" the Agreement. These features distinguish the case at hand from the swath of cases in which a district court merely recognizes the fact of a settlement and dismisses the underlying action. See, e.g., Smith, 401 F.3d at 21; see also Buckhannon, 532 U.S. at 604 n.7 (noting that federal jurisdiction to enforce private settlements within the structure of the original case is lacking unless the terms of the settlement "are incorporated in the order of dismissal").
Here, moreover, the terms of the Agreement explain in some detail the parameters of the district court's enforcement authority. If the parties are unable to resolve compliance issues on their own,
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 15 of 32
the plaintiffs may ask the court to determine that the Commonwealth is not living up to its obligations under the Agreement. The court is authorized to grant equitable relief (but not to use the contempt powers) in order to achieve compliance. If the Commonwealth fails to abide by such an order, the Agreement allows the court to "use any appropriate equitable or remedial power then available to it." The broad enforcement authority bestowed upon the district court separates the Agreement from the mine-run of private settlements, which — though enforceable — require resort to an independent action for breach of contract. See, e.g., Aronov, 562 F.3d at 91; Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003).
One other facet of the Agreement attests to the district court's ongoing role. The Agreement is subject to modification only upon mutual written assent of the parties and with the court's concurrence. The need for court approval of revisions in the terms of the Agreement closely resembles the process for amending a conventional consent decree. See Aronov, 562 F.3d at 91 (discussing process for modifying consent decrees); see also Fed. R. Civ. P. 60(b)(5). Taken together, the approval order and the Agreement itself envision an ongoing role for the district court in the dispute. That role includes ongoing judicial oversight. The approval order, therefore, satisfies the third prong of the inquiry.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 16 of 32
We summarize succinctly. Consideration of the three pertinent factors leads inexorably to the conclusion that the Agreement, though structured as a court-approved settlement rather than as a formal consent decree, bears a sufficient judicial imprimatur to qualify the plaintiffs as prevailing parties. That qualification, in turn, renders them eligible for an award of attorneys' fees.3
B. Timing. The Commonwealth maintains that any fee award is premature because (i) the "success" that the plaintiffs achieved was embodied in the Agreement and not in any court order; and (ii) in all events, the order entered by the district court — the approval order — does not constitute a final judgment. The first of these arguments (which implicitly acknowledges that the plaintiffs have obtained some relief on the merits) is easily dispatched. As we already have explained, the plaintiffs' success hinges on the combined effect of the Agreement and the approval order. See supra Part II(A). In view of that fact, it would be struthious — and plainly wrong — to attribute the relief obtained to the Agreement alone.
3 We emphasize that the mere fact that a settlement is subject to court approval does not in itself supply the necessary ingredients for prevailing party status. It is the presence of continuing judicial oversight that pushes the ball across the goal line and thus suffices to give a settlement the required judicial imprimatur.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 17 of 32
The plaintiffs' second argument has a certain superficial allure. After all, merely winning a battle in an ongoing case will not normally suffice to animate a federal fee-shifting statute. See Sole v. Wyner, 551 U.S. 74, 86 (2007) (denying fees to plaintiff who was granted preliminary injunction but was denied a permanent one); Hewitt v. Helms, 482 U.S. 755, 760 (1987) (finding no prevailing party status when "[t]he most that [movant] obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim"); Hanrahan v. Hampton, 446 U.S. 754, 758-59 (1980) (denying fees to plaintiffs who successfully secured vacation of a judgment against them, yielding a new trial).
This does not mean, however, that a fee award always must await full litigation of a case and the entry of a final judgment. The Supreme Court has made it transparently clear that an award under a federal fee-shifting statute may sometimes be appropriate prior to the entry of a final judgment. Tex. State Teachers Ass'n, 489 U.S. at 791. Such an award is proper, pendente lite, "where a party 'has established his entitlement to some relief on the merits of his claims.'" Id. at 790 (quoting Hanrahan, 446 U.S. at 757). Thus, prevailing party status is not restricted to a party who has secured a favorable final judgment. LaRouche v. Kezer, 20 F.3d 68, 71 (2d Cir. 1994).
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 18 of 32
The question, then, is whether the plaintiffs, at this
stage, can be said to have succeeded on significant claims affording
them some of the desired relief. Like the lower court, we think
that they have.
The Court has indicated that civil rights plaintiffs who
obtain enforceable relief by means of a consent decree or court-
approved settlement may be entitled to attorneys' fees. Maher v.
Gagne, 448 U.S. 122, 129 (1980). "The fact that [a party] prevailed
through a settlement rather than through litigation does not weaken
her claim to fees." Id. So long as there is a judicial imprimatur on the relief obtained, fees may follow.4
To be sure, this leaves open a question as to whether the
settlement is sufficiently final to bear the weight of a fee award.
Put another way, does it mark the achievement of a significant
measure of relief on the plaintiffs' claims? Here too the focus on
function over form that we embraced in Aronov informs our
4 In Buckhannon, the Supreme Court emphasized that its earlier decision in Maher continued to stand for the proposition that a consent decree may serve as the basis for a fee award. 532 U.S. at 604. The Court noted, however, that any suggestion that Maher allowed for the recovery of fees for private settlements was misplaced because such agreements "do not entail the judicial approval and oversight involved in consent decrees." Id. at 604 n.7. We think that, in light of the functional grounds on which the Buckhannon Court distinguished private settlements from consent decrees, its statement, consistent with our analysis in Aronov, suggests that Maher allows for the award of fees in the case of a settlement that does entail judicial approval and continuing judicial oversight (similar to what is involved in connection with a consent decree).
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 19 of 32
understanding of whether the timing is appropriate for a fee award. Viewed in that perspective, the question demands an affirmative answer. See, e.g., Richardson v. Miller, 279 F.3d 1, 4 (1st Cir. 2002) (implicitly recognizing that a settlement that was functionally similar to a consent decree could serve as the basis for an award of fees).
This litigation has reached a significant plateau. In the Agreement, the parties characterize the settlement as "final" and "comprehensive." Moreover, the Agreement, embellished by the approval order, affords meaningful relief to the plaintiff class and bears the requisite hallmarks of judicial approbation and oversight. See supra Part II(A). Thus, this case is unlike Wyner, Hewitt, or Hanrahan, in which the fee-seeker achieved only some fleeting success at a time when the litigation had yet to run its course. This case, while not yet closed, is not currently being litigated; it has been settled and, therefore, the litigation, as a practical matter, has drawn to a close.
The Commonwealth notes that there exists the possibility that litigation could be resumed (if, say, it is unable to secure funding and, thus, to follow through on the commitments embodied in the Agreement). But this sort of latent uncertainty exists in virtually every case; even a final judgment can be appealed, see Fed. R. App. P. 4, or reopened in certain circumstances, see, e.g., Fed. R. Civ. P. 60(b). Such a bare possibility does not, in and of
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 20 of 32
itself, inject a sufficient level of uncertainty to make a fee award premature. See generally Tex. State Teachers Ass'n, 489 U.S. at 792 (explaining that, at minimum, a prevailing party "must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant" and that an insignificant "technical victory" would not suffice).
C. Reasonableness. As a fallback, the Commonwealth challenges the size of the fee award. For this purpose, we treat case law under the Fees Act, 42 U.S.C. § 1988, and other federal fees clarifying statutes, as persuasive authority. See Me. Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 14 (1st Cir. 2003); New Hampshire v. Adams, 159 F.3d 680, 684 (1st Cir. 1998). "[B]ecause determination of the extent of a reasonable fee necessarily involves a series of judgment calls, an appellate court is far more likely to defer to the trial court in reviewing fee computations than in many other situations." Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). Consequently, appellate review is for abuse of discretion. Burke v. McDonald, 572 F.3d 51, 63 (1st Cir. 2009); Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir. 2001). Within this rubric, a material error of law always constitutes an abuse of discretion. Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008). But apart from issues of law, "we will set aside a fee award only if it clearly
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 21 of 32
appears that the trial court ignored a factor deserving significant weight, relied upon an improper factor, or evaluated all the proper factors (and no improper ones), but made a serious mistake in weighing them." Gay Officers Action League, 247 F.3d at 292-93.
When fashioning a fee award, the district court ordinarily starts by constructing what has come to be known as the lodestar. See Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010). In general, the lodestar is the product of the number of hours appropriately worked times a reasonable hourly rate or rates. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Gay Officers Action League, 247 F.3d at 295. The party seeking the award has the burden of producing materials that support the request. Hensley, 461 U.S. at 433. These materials should include counsel's contemporaneous time and billing records, suitably detailed, and information anent the law firm's standard billing rates. Gay Officers Action League, 247 F.3d at 295-96. The putative payor may submit countervailing evidence. See, e.g., Foley v. City of Lowell, 948 F.2d 10, 20-21 (1st Cir. 1991). The court, usually after hearing arguments, will then "calculate[] the time counsel spent on the case, subtract[] duplicative, unproductive, or excessive hours, and . . . appl[y] prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved)." Gay Officers Action League, 247 F.3d at 295.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 22 of 32
In the instant case, the plaintiffs moved for an award of fees (including expenses) in the amount of $786,123. This figure included $775,136 in fees and $10,987 in expenses. Billing rates ranged from $250/hr. to $425/hr. depending on the skill and experience of the lawyer rendering a particular service. Travel time, where separately delineated in the motion for fees, was invoiced at a flat rate of $150/hr.
The plaintiffs buttressed their motion with an array of supporting documents. In mounting its opposition to the dollar amount of the request, the Commonwealth relied mainly on argumentation, not evidence (although it did point to other, more modest awards that had been made in unrelated cases). After hearing protracted arguments, the district court awarded the plaintiffs exactly what they requested.
On appeal, the Commonwealth contests the reasonableness of this award on three grounds: (i) that it compensates the plaintiffs for unnecessary work; (ii) that the rates used in formulating the award are inordinately high; and (iii) that many of the costs and expense items claimed are not recoverable as part of a fee-shifting award. We address each of these plaints separately.
1. Time Spent. The Commonwealth's assault on the temporal component of the fee award rests on an assertion that the district court abused its discretion by choosing not to pare the total number of hours claimed by the plaintiffs. Specifically, the
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 23 of 32
Commonwealth insists that the plaintiffs overstaffed the case and that the district court should have carved out time spent in profligate duplication of effort and other unnecessary or unreimbursable endeavors, such as intramural conferencing, settlement negotiations prior to the commencement of the action, and travel. We do not agree.
The Commonwealth's principal lament relates to staffing. In evaluating this plaint, we are mindful that there is no mathematically precise formula for staffing complex litigation. Each case is different, and the trial court is "uniquely positioned to weigh the parties' staffing needs, assess the reasonableness of their handling of the case, and evaluate the quality and relevance of the services rendered." Gay Officers Action League, 247 F.3d at 298.
We focus first on the plaintiffs' enlistment of a number of different lawyers, many of whom worked collectively on specific projects within the broader litigation. Such staffing practices are not forbidden in fee-shifting cases; parties sometimes are justified in making a strategic choice to use teams of lawyers in various phases of complex litigation. See id. at 297 (explaining that "the mere fact that more than one lawyer toils on the same general task does not necessarily constitute excessive staffing"). And where the deployment of multiple attorneys on a single project is reasonable, that staffing pattern inevitably results in a need for some amount
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 24 of 32
of coordination, including intramural conferencing. Everything turns on the reasonableness of the staffing patterns employed and the overall time spent. See Torres-Rivera, 524 F.3d at 336 (explaining that reasonableness in the context of time management "is largely a matter of informed judgment").
When all is said and done, staffing must be appraised on a case-by-case basis. See, e.g., Gay Officers Action League, 247 F.3d at 298. Here, the plaintiffs accounted for a modicum of overstaffing by eliminating some time spent by two of their lawyers and completely disregarding the hours worked by some minor players before formulating their fee request. The district court, which was intimately familiar with the demands of this unusually complicated case, found the remaining hours spent to be reasonable. Had the Commonwealth submitted evidence opposing the request — for example, affidavits attesting that private clients would not typically consent to staffing patterns like those used by the plaintiffs in this case — the district court might have viewed the question differently. We certainly would have. Nor has the Commonwealth in lieu of an affidavit cited to us analogous cases in support of its contention that this case was simply overstaffed. In the absence of such information, though the district court's assessment is one on which reasonable minds could disagree, it was not an abuse of discretion.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 25 of 32
Much the same approach can be taken to the Commonwealth's complaint about travel time. Travel is often a necessary incident of litigation,5 and an attorney's travel time may be reimbursed in a fee award. See, e.g., Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983). Although compensation for such time ordinarily is calculated at an hourly rate lower than that which applies to the attorney's substantive labors, see, e.g., id., there is no hard-and-fast rule establishing what percentage of an attorney's standard billing rate is appropriate for travel time.
Viewed against this backdrop, the Commonwealth's broadside against travel time misses the mark. Some of the plaintiffs' lawyers charged for travel time at a reduced rate and those that did not provide a designated travel rate billed for travel time (as for their other work) at rates substantially below their customary billing rates. All of the submissions tied the quantum of travel to work that the district court found appropriate. The award of amounts attributable to travel time was, therefore, not an abuse of discretion.
The Commonwealth also excoriates the inclusion of time spent in performing legal work prior to the commencement of suit. "[P]re-suit fees may be awarded . . . only for 'discrete' work 'that
5 In this case, some travel was essential. The case was pending in the western division of the District of Massachusetts, sitting in Springfield, and the plaintiffs' lawyers were based in Boston (some 90 miles away).
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 26 of 32
was both useful and of a type ordinarily necessary to advance the . . . litigation to the stage it reached.'" Schneider v. Colegio de Abogados de P.R., 187 F.3d 30, 33 (1st Cir. 1999) (quoting Webb v. Bd. of Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 243 (1985)); see also Bogan v. City of Boston, 489 F.3d 417, 427 (1st Cir. 2007). The district court found, at least implicitly, that the pre-suit hours lodged here fall within this taxonomy. We think that this judgment call was within the encincture of the court's discretion.
Having dealt with the Commonwealth's specific plaints, we need not tarry over its global objection to the fee award. In conjunction with their motion for fees, the plaintiffs submitted detailed records that itemized their work on the case over a period of several years. In addition, they submitted affidavits from three of their counsel describing each lawyer's role in the litigation and the specific contributions that he or she had made to the case. The plaintiffs also submitted affidavits from brain-injury experts speaking to the significance of the relief obtained.
The district court had the benefit of these materials. It (understandably) gave considerable weight to the fact that the plaintiffs discounted the total number of hours before compiling their fee request, electing to eschew compensation for a portion of the time that they had worked. As a result of this self-pruning, the requested fee, in the district court's estimation, was actually lower than the lodestar. The fee award in this case was certainly
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 27 of 32
quite generous. On this record, however, we cannot say that the district court abused its discretion in declining to reduce even further the total number of hours that the plaintiffs used as the multiplicand in the calculation of fees.
2. Rates. The Commonwealth also challenges the rates that the plaintiffs utilized in seeking fees. It suggests that the use of such exorbitant rates as a basis for the fee award results in a windfall.
There is no universal market rate for legal services. Rather, "[r]easonable hourly rates will vary depending on the nature of the work, the locality in which it is performed, the qualifications of the lawyers, and other criteria." United States v. One Star Class Sloop Sailboat, 546 F.3d 26, 38 (1st Cir. 2008); see Blum v. Stenson, 465 U.S. 886, 895 (1984). There are, however, some generally accepted guideposts.
One such rule of thumb is that the rate that a private lawyer actually charges to clients in the ordinary course of his practice, though not conclusive, is a useful indicator of market value. One Star Class Sloop Sailboat, 546 F.3d at 40. Another rule of thumb is that data evidencing the prevailing market rate for counsel of comparable skill and experience provides helpful guidance. See Blum, 465 U.S. at 895 & n.11. The fee-seeker must carry the burden of establishing the prevailing hourly rate (or schedule of rates) in the community for the performance of similar
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 28 of 32
legal services by comparably credentialled counsel. See Bordanaro v. McLeod, 871 F.2d 1151, 1168 (1st Cir. 1989).
The rates applied and awarded in this case are amply supported. In their motion papers, the plaintiffs sought compensation at hourly rates ranging from $250/hr. to $425/hr. The individual lawyers fell into two groups: lawyers from the nonprofit Center for Public Interest and lawyers from the Boston office of a national law firm.
As to the former, the rates used were identical to those that the same lawyers had previously received in civil rights cases. See, e.g., Rosie D. ex rel. John D. v. Patrick, 593 F. Supp. 2d 325, 331 (D. Mass. 2009). Moreover, the rates were relatively modest when compared to the standard rates charged by their counterparts in private law firms.
As to the law firm, the rates charged were pretty much the same as those received by the firm in a recently concluded public interest case. See id. at 330-31. Those rates were in many instances substantially below the standard billing rates charged by the private attorneys.6 See id. at 330.
In passing upon the reasonableness of the rates, the court below considered the rates approved in Rosie D., a case in which the
6 For example, the standard billing rate for the most accomplished member of the law firm was $725/hr., but the plaintiffs used a rate of $425/hr. for his time in formulating their fee request.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 29 of 32
fee award against the Commonwealth was not appealed. The court also considered affidavits executed by an independent expert on fees and by two public interest lawyers practicing in Massachusetts. Each of those affiants opined that the suggested rates were not only reasonable but also below the market rates for the types of work performed by the caliber of lawyers involved.
We think it is significant that, despite the ferocity of the Commonwealth's attack on the rates, it presented no evidence of a countervailing rate structure. The Supreme Court has admonished that, where a party opposing a motion for fees fails to submit "any evidence challenging the accuracy and reasonableness" of the facts asserted in connection with a supported fee request, that failure may amount to a waiver of the right to challenge the district court's determination regarding the reasonableness of the request on appeal. Blum, 465 U.S. at 892 n.5. Where as here, a prevailing party submits a supported application for fees, the fee-target runs a risk if it chooses to do no more than criticize the rates requested and point to the fact that some other judge, in some other case, has embraced a different set of rates. Foley, 948 F.2d at 21 ("The City, of course, had an opportunity to adduce evidence of a more realistic rate structure, but did not do so. Absent any such evidence, we are hard pressed to fault the lower court for embracing the plaintiff's suggested rates.").~
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 30 of 32

To say more on this point would be to paint the lily. In

light of the supporting documentation provided by the plaintiffs and

the Commonwealth's failure to produce or point to contradictory

evidence, we conclude that the district court did not abuse its

discretion in fashioning a fee award premised on the suggested

rates.

3. Expenses. The Commonwealth challenges the district

court's allowance of certain expenses and cost items, including

charges for travel, printing, and photocopying. The Commonwealth

asserts that these charges should have been disallowed because they

were not "directly associated" with the litigation. This argument

seems to rest largely on the notion that expenses, not recoverable

as costs under 28 U.S.C. § 1920, are not independently recoverable

at all but, rather, comprise a part of the lawyers' overhead.

This assertion consists of more cry than wool. It is

settled beyond peradventure that reasonable expenses, necessary for

the prosecution of a case, are ancillary to and may be incorporated

as part of a fee award under a prototypical federal fee-shifting

statute. See Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir.

1983) (per curiam); see also 42 U.S.C. § 12205 (including

"litigation expenses, and costs" as components of allowable fee

awards).

Contrary to the Commonwealth's implication, the

availability of such remediation is not limited to items recoverable

as court costs under section 1920. Rather, such recovery can extend

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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 31 of 32
to a broad range of other items, including travel expenses, computer time, and the like. See Attrezzi, LLC v. Maytag Corp., 436 F.3d 32, 43 (1st Cir. 2006) (explaining that "such items may be recovered where appropriate as part of attorneys' fees under the typical federal fee-shifting statute").
The Commonwealth's challenge to the amount of costs awarded for printing — an expense explicitly listed as taxable under section 1920 — is equally unavailing. The ADA's fee-shifting provision clearly includes "costs" as part of an allowable fee award, and in combination with the express terms of section 1920, this renders the Commonwealth's bare assertion that printing costs "have been repeatedly rejected as 'unrecoverable overhead'" wholly unconvincing.
That ends this aspect of the matter. We hold, without serious question, that reasonable costs and expenses for travel, printing, and photocopying can be recovered in a fee-shifting proceeding without regard to the limitations contained in 28 U.S.C. § 1920. Because the Commonwealth has not contested either the fact or the amount of the expenditures targeted here, awarding reimbursement of them did not constitute an abuse of the trial court's discretion.
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Case 3:07-cv-30084-MAP Document 79 Filed 09/26/11 Page 32 of 32 III. CONCLUSION
We need go no further. For the reasons elucidated above, we uphold the district court's award of attorneys' fees and expenses. Affirmed.
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 </s> Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 1 of 20

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

Catherine Hutchinson, by her guardian,

)

Sandy Julien; Raymond Puchalski,

)

by his guardian Nickie Chandler;

)

Glen Jones, by his guardian Steven Jones;

)

Jason Cate, by his next friend and father, Addison )

Cate, and Nathaniel Wilson,

)

on behalf of themselves and all others

)

similarly situated; and

)

)

The Brain Injury Association of

)

Massachusetts and the Stavros Center for

)

Independent Living

)

)

Plaintiffs,

)

)

v.

)

)

DevalL. Patrick, Governor;

)

JudyAnn Bigby, Secretary ofthe Executive Office )

of Health and Human Services,

)

Leslie Kirwan, Secretary ofthe Executive Office )

ofAdministration and Finance;

)

Thomas Dehner, Acting Director of Mass Health, )

Elmer C. Bartels, Commissioner of Massachusetts )

Rehabilitation Commission

)

)

Defendants.

)

)

Civil Action No. 07-CV-30084-MAP

AMENDED CLASS ACTION COMPLAINT

I. INTRODUCTION

1.

Catherine Hutchinson, Raymond Puchalski, Glen Jones, Nathaniel Wilson, and

Jason Cate (hereafter "the individual plaintiffs") have serious brain injuries that substantially

impair basic life skills and require ongoing rehabilitation and support. Each of these individuals

is qualified for the defendants' system oflong term care services for persons with disabilities,

including Medicaid services. Each is unnecessarily institutionalized in a nursing or rehabilitation

1

Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 2 of 20
facility because of the defendant's failure to provide these services and support in appropriate, integrated cOlllinunity settings. Instead, the defendants require these individuals, and hundreds of other individuals with brain injuries, to live in facilities segregated fTOm the community as a condition of receiving care and assistance.
2. More than 8000 individuals with brain injuries currently live in nursing and rehabilitation facilities in Massachusetts. At least a quarter of these individuals are able to, and prefer to, reside in integrated connnunity settings with appropriate supports. In the absence of these services, they remain Ulmecessarily institutionalized, sacrificing their personal liberty, . autonomy and fi·eedom of association, as well as meaningful access to community life, in order to receive care and treatment for their disability. Hundreds more individuals with brain injuries are at risk of admission to such facilities just to receive the limited rehabilitative services that the defendants do provide.
3. Despite their ability to benefit from cOlrununity-based supports, all of these individuals, and others similarly-situated, are experiencing or will experience Ulll1ecessary and prolonged institutionalization in violation ofthe Americans with Disabilities Act (ADA). 42 U.S.C. § 12132 et seq; 28 C.F.R. § 35.l30(d) et seq., and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"). 29 U.S.C. § 794(a) et seq.
4. The brain injuries experienced by these individuals are profound and life changing, but they need not result in a lifetime of institutional care. Like persons without disabilities, these individuals need "family relations, social contacts, work options, economic, independence, educational advancement and cultural enrichment." Olmsteadv. L.c., 527 U.S.581, 600 (1999). Their medical and rehabilitative needs can best bernet in connnUility settings, which have been demonstrated to improve skills, promote rehabilitative goals, and
2

Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 3 of 20
facilitate independence for persons with brain injuries and other severe disabilities. These individuals are entitled to receive services in the most integrated setting appropriate for their needs and should not continue to suffer the isolation and indignity of institutional care because of the defendants' ineffective reliance on institutions like nursing and other long term care facilities.
5. TIle defendants' excessive use of institutions to care for persons with brain injuries is longstanding. Many individuals with brain injuries have been determined by their treatment professionals to be ready for placement into a conInmnity setting, but these professional recommendations have not been implemented for many years due to the lack of appropriate alternatives. Despite lmowledge of these recOlIDnendations, of the professional consensus about the benefits of community living, of the cost-effectiveness of non-institutional altematives, and of the mandates of federal law, the defendants have not made reasonable efforts to develop cOlmnunity alternatives to institutional confinement for persons with brain injuries.
6. Instead, the number of persons with brain injuries who remain needlessly institutionalized in nursing and rehabilitation facilities in Massachusetts has increased over the past decade. There has been no meaningful effort by the defendants, through the Executive Ofiice of Health and Human Services (EOI-IHS) and other state agencies, to create community alternatives for these individuals. Moreover, the defendants have failed to develop and implement a comprehensive and effectively working plan to move individuals with brain injuries into the cOlIDnunity at a reasonable pace.
7. In fact, defendants have effectively denied nursing and rehabilitation facility residents access to their two, small community services programs for individuals with traumatic brain injuries. The defendants fail to infonn nursing and rehabilitation facility residents of these programs, fail to assess them for these programs, and fail to afford them equal access to these
3

Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 4 of 20
programs. Moreover, the defendants administer these programs in a discriminatory manner, purposefully excluding individuals with acquired brain injuries or who, because of the severity of their disability, find themselves with no option but to be admitted to a nursing or rehabilitation facility for long term care.
8. By requiring these individuals, and others similarly situated, to submit to institutionalization as a condition for receiving long tenn care, the defendants cause the plaintiffs to experience unnecessary regression, deterioration, isolation, and segregation. TIns segregation "perpetuates unwarranted assumptions" that these individuals are "incapable or unworthy of participating in cOl11l11unity life." Olmstead, 527 U.S. at 600.
9. As Medicaid-eligible individuals, the plaintiffs are entitled to a choice of institutional and cOl11l11UJnty settings, 42 U.S.C. § 1396n(c) et seq, including reasonable access to the defendants' federally-funded Home and COl11l11unity-Based Services (HCBS) waiver program Instead, tlle defendants have failed to administer tIns Medicaid program in an efficient and effective manner, providing inadequate notice of, and access to, the HCBS program.
10. Even within nursing facilities, the defendants provide these individuals, and others like tllem, limited access to rehabilitative services such as speech, occupational and physical tllerapies. The provision of nursing and related services is often based on a person's needs in the institutional setting, as opposed to tlle rehabilitative services necessary for successful cOl11l11UJnty integration. The detnal of these medically necessary therapies, all of which are Medicaid- covered services and wInch must be provided promptly and as long as medically necessary under the law, further impedes the plaintiffs' prospects for recovery and for independent COlllilll11lity living. Over time, tlns failure to provide necessary services has resulted in significant deterioration of tlle plaintiff s basic functioning, abilities, and medical condition.
4

Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 5 of 20
11. The defendants' failure to provide community-based support services has caused, and will continue to cause, serious, long-term, and potentially ilTeversible ham! to the individual plaintiffs and the class that they represent. The plaintiffs, therefore, seek prospective injunctive relief ordering the defendants to provide the rehabilitative services they need, and the integrated, community-based support services to which they are entitled, in accordance with federal law. II. JURISDICTION AND VENUE
12. This is a civil action authorized by 42 U.s.C. § 1983 to redress the deprivation of rights, privileges, and immunities guaranteed by federal law. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 1343(a)(3), and 1343(a)(4).
13. This Court has jurisdiction over tins action for declaratory relief pursuant to 28 U.S.C.§ 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202, 42 U.S.C. § 1983, and Rule 65 of the Federal Rules of Civil Procedure.
14. Venue is proper in tile District of Massachusetts pursuant to 28 U.S.C. § 1391(b)(2), as a substantial P811 of the events or onllssions giving rise to these claims OCCUlTed within the COlmnonwealth of Massachusetts. The majority of the plaintiffs reside in westem Massachusetts. III. THE PARTIES
A. The Individual Plaintiffs 1. Catherine Hutchinson
15. Catllerine Hutchinson is a 54 year-old woman 81ld mother who resides in Bristol County, Attleboro, but who cUlTently is institutionalized at tile Middleboro Skilled C81'e Center (MSCC) in Middleboro, Massachusetts. She brings tllis action tlu'ough her guardian, Sandy Julien, who lives at 405 Willett Avenue in Riverside, Rhode Island.
5

Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 6 of 20
16. Ten years ago, Ms. Hutchinson suffered a stroke that caused bleeding in her brain stem. As a result of this acquired brain injury, she has very little movement in her arms and legs. She operates an electric wheelchair using a button and directional arrows she can manipulate with her head. Although Ms. Hutchinson is unable to speak, she can effectively communicate her thoughts and wishes. With her eyes, she can answer basic questions, utilize a letter board and operate e-mail via the internet. She has re-learned many basic skills since her injury, including how to swallow on her own and how to use a straw for drinking.
17. Ms. Hutchinson receives no ongoing, rehabilitative services, despite a medical need for these services in order to maintain her physical well-being and prevent further deterioration ofher medical condition. What restorative treatment she does receive is limited in nature.
18. Ms. Hutchinson has been a resident of the nursing facility for more than nine years. She has long expressed her desire and intention to return home with community support services, and to be closer to her family and friends. Her social worker and treatment professionals agree that she could live in a less restrictive setting with the appropriate services in place. Ms. Hutchinson describes herself as trapped, a prisoner of her disability and of the nursing facility that leaves her isolated from the life she used to know.
19. Because Ms. Hutchinson's disability resulted from a medical event, rather than an accident, she is considered to have an "acquired" brain injury, rather than a traumatic brain injUlY. As a result of this arbitrary distinction she, and many class members like her, are denied access to the only brain injury services offered by the defendants. Ms. Hutchinson is a remarkable and intelligent woman who uses her time and energy to advocate on behalf of people with similar disabilities. She would benefit from access to community-based services, but is
6

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Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 7 of 20

forced to remain in an overly restrictive nursing facility due to the defendants' discriminatory administration of their long term care system.
2. Raymond Puchalski 20. Raymond Puchalsld, ("Ray") is a 58 year-old man who resides in Millers Falls in Franklin County, but who currently is institutionalized in Kindred/Goddard Hospital' s
neurobehavioral unit in Stoughton, Massachusetts. Mr. Puchalski brings this action through his
guardian, Nickie Chandler, who resides at 165 Old Bay Road in Belchertown, MA.
21. Four years ago, Mr. Puchalski's car was struck by a driver who fell asleep at the wheel. Mr. Puchalsld was in a coma for four weeks following tlle accident and was not
expected to survive. Following the acute phase oflus treatment, he spent eighteen months in a nursing facility with little specialized treatment. In order to secure more appropriate care, his partner and guardian was again forced to place him in an institutional setting, one far from Ius home in western Massachusetts.
22. In the two years since his admission, Mr. Puchalski has made significant progress.
He can anlbulate and feed himself independently. He has also learned to shower on his own Witll cues. Although he has had significant difficulty with both expressive and receptive language commUlucation, Ius conunUllication skills are also showing signs of improvement.
23. Social work staff and Mr. Puchalsld's treatment professionals agree that he could be discharged to a small, supervised commUluty residence with appropriate support, but there is no cOlnmUllity setting available for him. He longs to have more freedom, to spend time outdoors and Witll family, and to retU11l to Ius home in Millers Falls, the only place he ever wanted to live. These goals seem remote, however, and his Ulmecessary institutionalization likely to continue, given the lack of appropriate conullUllity support services made available by the defendants.

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3. Glen Jones 24. Glen Jones is a 57 year-old man who resides in Essex County, but who currently is institutionalized at the Worcester Skilled Care Center (WSCC) in Worcester, Massachusetts. He brings tlus action through his guardian, Steven Jones, who resides at 51 Kent Street in Haverhill, Massachusetts. 25. Mr. Jones worked as an auto mechanic and owned Ius own business prior to tile accident iliat changed his life. In 1986, he sustained an open head injury following a motor vehicle crash and spent three weeks in a coma. After receiving rehabilitative treatment in two area facilities, he was discharged to WSCC in 1990. 26. Mr. Jones has spent ilie past 21 years of his life in institutional settings. He has chafed against the limitations of tllese enviromnents, longing for a return to meaningful employment and the life of independence he used to know. Following his injury, his family applied to the one state-funded program for persons with traumatic brain injury, but never received ilie services necessary to facilitate his discharge to the community. Efforts to identify existing residential programs were unsuccessful. 27. Mr. Jones is articulate, mobile and motivated to resume his former life. He has the continuing support offamily, and intends to return to the Haverhill area where his brother and mother reside. Mr. Jones' treatment professionals agree that he could benefit from more integrated conID1Unity suppOli services, if those services existed. In ilieir absence, he has been forced to spend decades oflus adult life isolated from tile cOlmnunity, living apart from family and friends, and umlecessarily confined in an institutional setting.
4. Nathaniel Wilson 28. Nathaniel Wilson is a 54 year old man who resides in Springfield in Hampden
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Case 3:07-cv-30084-MAP Document 7 Filed 06/18/07 Page 9 of 20
County and who cUlTently is institutionalized at the Wingate of Wilbrallalll skilled nursing facility in Wilbrallaln, Massachusetts. He brings this action on his own behalf.
29. A former machinist, Mr. Wilson began experiencing physical limitations approximately ten yeal's ago that affected his ability to work. He struggled to secure section 8 housing alld to survive on disability benefits. In April of 2006, he experienced a stroke that dalnaged the right side of his brain. This acquired brain injury primarily impacted the left side of his body, affecting his speech, mobility, facial muscles and hand.
30 Despite significant progress in the eal'ly phase of his rehabilitation, Mr. Wilson still suffers from chronic and debilitating pain in the left side of his body. However, he can alnbulate with a walker and is able to commnnicate clearly.
31. Mr. Wilson has limited opportnnities to leave the nursing facility. A brother provides his only regular access to the community, transporting him to volunteer at all area church each week. Otherwise, a chair outside the nursing facility entrance is his only exposure to the outside world.
32. Mr. Wilson has little in common with the facility's older residents, alld he longs for the autonomy alld privacy of his former life. He is able to independently perfonn most activities of daily living and has no hallds-on nursing needs. He has received only short-term rehabilitative services at Wingate. He would benefit from the opportnnity to live in all integrated commnnity setting alld to participate in more community-based progral11s. He needs ongoing physical tllerapy to support these community integration goals.
33. Mr. Wilson wishes to leave the facility and intends to return to tlle Springfield area to be near his daughter. He wants to live as independently as possible in the community. His social worker alld treatment professionals agree tllat he could function in the cOlnnlIDlity
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with supervision and support, and believe he would be happier living in a less restrictive setting with people his own age. However, a lack of appropriate community-based services has prevented his discharge.
34. Since Mr. Wilson's disability resulted fTOm a medical event, rather than an external accident, he is considered to have an "acquired" brain injury. As a result of this
arbitrary distinction, Mr. Wilson, and many class members like him, are denied access to the only brain injury services offered by the defendants. Mr. Wilson would benefit from access to
integrated, community-based services, but is forced to remain in an overly restrictive nursing home setting due to the discriminatory nature of the defendants' service system.
5. Jason Cate 35. Jason Cate is a fOliy year old man who resides in Westfield in Hampden County, but is currently institutionalized at the Heritage Hall West nursing facility in Agawam, Massachusetts. He brings this action through his father and next friend, Addison Cate, who lives at 40 Huc1debelTY Lane in Easthampton, Massachusetts.
36. In the late 1990's, Mr. Cate required several surgeries for metastasized testicular
cancer, including surgeries to remove tumors from his abdomen and brain. Despite the serious and complex nature of these procedures, he continued to live independently in his own home. In
2004 and 2005, Mr. Cate experienced two seizures, the second leaving him incapacitated on the
floor for three days. He was hospitalized and spent several weeks in an acute treatment center. When he was discharged from the hospital, his father, Addison Cate, had little choice but to transfer his son to Heritage Hall West's nursing facility because of the lack of appropriate community alternatives.
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37. As a result of his injuries, Jason Cate experiences diminished cognitive abilities and vision loss. He requires assistance with walking and coordinating his physical movements. Despite his mobility, Mr. Cate spends most oflus time in a wheel chair. His only access to the community is provided by a companion who is privately funded by his family.
38. Mr. Cate has spent almost two years living in a nursing facility. He has very little in common with the older residents and requires little, if any, skilled nursing. Despite ongoing needs for physical therapy to maintain and improve Ius coordination, Mr. Cate has received only brief and sporadic access to this service.
39. In 2006, Mr. Cate was evaluated by a private service provider who found he was able to live in the community with appropriate supports. However, the lack of an accessible residential site, and the absence of residential supports in western Massachusetts have'forced lum to remain institutionalized at Heritage Hall.
40. Since Mr. Cate's acquired brain injury occurred as a result of internal medical conditions, he is denied access to the only brain injury services offered by the defendants. As a result, Mr. Cate is forced to remain in an overly restrictive nursing facility due to the discriminatory nature of the defendants' service system.
41. Mr. Cate longs to return to his cOll'ununity. He is frustrated by the confIning nature oflife in the nursing facility. He intends to return to the Hamden County area to be closer to his family and friends. Mr. Cate's treatment professionals agree that he could benefIt from more integrated community supports. Unless appropriate services are made available, Mr. Cate will remain llill1ecessarily segregated in an institutional setting, and without any hope for a better future.
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B. The Organizational Plaintiffs 42. The Brain Injury Association of Massachusetts ("BIAMA") is a statewide, nonprofit advocacy organization comprised of, and operated by, persons with brain injuries, their families and friends, and other medical professionals. 43. BIAMA is dedicated to ensuring that all citizens with brain injuries in the Commonwealth are afforded appropriate services and supports in the most integrated, home-like setting possible, and that these individuals and their families have meaningful choices about the nature and location of those services. Over the course of its 25-year history, BIAMA has listened to, and sought to magnify the voices of, those living with brain injury, particularly those who, because of a lack of appropriate services, find themselves segregated in institutional settings or at risk of institutional placement. As an organization, BIAMA has advocated for enhancement of government services for persons with brain injuries, and particularly for the expansion of conunurrity support services. It also has monitored the actions of the defendants in order to ensure that such services are made available. It has expended considerable organizational resources attempting to expand conununity services and supports for persons with brain injuries. Despite these committed efforts, BIAMA has been unable to achieve the improvements necessary to redress the ongoing civil rights violations experienced by its members and alleged within this Complaint. 44. BIAMA is a membership organization that includes individuals with both acquired and traumatic brain injury who reside in nursing facilities. In addition to its organizational interest in expanding connnunity settings and supports, BIAMA has many members who are also members of the plaintiff class and who are directly harmed by the actions and inactions of the defendants.
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45. The Stavros Center for Independent Living (hereafter "Stavros") is a private, nonprofit corporation and is one of the oldest independent living programs in the conntry. It serves Franklin, Hampshire, and Hampden counties of western Massachusetts. State and federal funds support Stavros' independent living programs. Each year Stavros provides individual advocacy, peer counseling, skills training, information, and referrals to more than five thousand individuals with significant disabilities, including persons with brain injuries who live in nursing facilities in western Massachusetts. Stavros also administers the PCA program for the counties that it serves. Additionally, Stavros offers lift-equipped van transportation, independent living services to individuals who are deaf or hard of hearing, an equipment loan program, and assistive technology services. Directed, managed, and staffed by people with disabilities, Stavros is mandated to provide a full range of disability services to members of the plaintiff class, subject to available resources. The defendants' actions impede Stavros' ability to effectively provide Personal Care Attendant services to individuals with brain injuries and limit its ability to offer these services in integrated conununity settings.
46. Stavros is required to file annual reports with the Rehabilitation Services Administration (RSA), the federal agency responsible for setting and enforcing the standards for independent living centers, and with the Massachusetts Rehabilitation Commission (MRC), concerning the nnnlber of persons whom it assists to transition from an institution to the community. RSA may use this infOlmation to determine the level of funding which Stavros will receive. The defendants' actions compromise Stavros' ability to carry out its federal responsibilities and jeopardize its funding.
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C. The Plaintiff Class
47. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the individual plaintiffs bring tlus matter as a class action on behalf of Massachusetts residents who now, or at any time during this litigation: (1) are Medicaid eligible; (2) have suffered a brain injury; (3) reside in a nursing or rehabilitation facility or are eligible for admission to such a facility; and (4) would benefit from community support services. The proposed class excludes nursing facility residents who are class members in a related case, Rolland v. Cellucci, 191 F.R.D.3 (D. Mass. 2000).
48. The plaintiff class is so numerous and geographically diverse that joinder of all members is impracticable. It is estimated that, at any given time, the plaintiff class exceeds at least several thousand individuals.
49. There are questions of law and fact common to the plaintiff class including, inter alia:
(1) whether defendants are violating the ADA and Section 504 by: i) failing to provide commUluty support services to nursing or rehabilitation facility residents who have brain injuries in the most integrated setting appropriate to their needs; ii) failing to develop a comprehensive and effectively working plan for achieving this goal; iii) utilizing methods of administration that do not allow for community placements to occur at a reasonable pace; iv) requiring persons with brain injuries to be admitted to and remain in nursing and rehabilitation facilities due to a lack of appropriate connnunity support services; v) unlawfully discriminating against persons with acquired brain injuries; and vi) unlawfully discriminating against persons with brain injuries based on the severity of their disabilities; and
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(2) whether defendants are in violation of the federal Medicaid program by: i) failing to provide necessary rehabilitative services with reasonable promptness; ii) failing to provide nursing or rehabilitation facility residents with brain injuries with adequate notice of, assessment for, and access to community support services; and iii) denying persons with brain injuries a choice between an institutionalized nursing or rehabilitation facility and integrated community waiver services by failing to inform them of these alternatives, failing to provide them with relevant information necessary to exercise tins choice, and failing to afford tllem meaningful access to community waiver services. 50. As a result of the defendants' actions and inactions, the individual plaintiffs have been denied access to the rehabilitative and community support services needed to avoid unnecessary segregation and the devastating effects of prolonged institutionalization. These claims are typical of tile plaintiff class, allowing fue individual plaintiffs to adequately and fairly represent the federal rights and interests of class members. The individual plaintiffs will fully and vigorously prosecute this action, understanding that many class members are unable to pursue their individual rights, or to remedy tllese systemic violations, on their own. The plaintiffs seek certification of a class pursuant to Fed. R. Civ. P. 23(b)(2) on the grounds that tile defendants' policies, practices, and procedures are unlawful, discriminatory, and perpetuate an ongoing harm against similarly situated individuals with serious brain injuries, thereby making injwlctive and declaratory relief appropriate with respect to tile entire plaintiff class. 51. The individual plaintiffs seek relief that will inure to the benefit of the plaintiff class as a whole. The plaintiffs are represented by attorneys experienced in federal class action litigation, disability law and public assistance benefits, including the Massachusetts Medicaid program.
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D. The Defendants 52. DevalL. Patrick, Governor of Massachusetts, is the Chief Executive Officer of the Commonwealth. He oversees the various executive departments of state government including the multiple secretariats and agencies responsible for the care and treatment of individuals with disabilities and specifically persons with brain injuries, including the Executive Office of Health and Human Services (EOHHS) and the Executive Office of Administration and Finance (EOAF). He appoints the heads of these, secretariats and approves the appointment of Commissioners responsible for the operation of state departments and agencies that manage and fund health and disability services, including the director ofthe Office of Medicaid (MassHealth) and the Commissioner of the Massachusetts Rehabilitative Commission (MRC). He also is responsible for seeking funds from the legislature to implement the Medicaid program. He is sued in his official capacity. 53. JudyAon Bigby, Secretary of EOHHS, is responsible for the oversight, supervision, and control of the health and human services departments within the Executive Office, which includes the agencies responsible for providing, funding, or ananging communitybased services for individuals with disabilities, and specifically MassHealth and MRC. Secretary Bigby is responsible for ensuring that persons with disabilities are cared for, treated, and supported as required by law, and for coordinating and monitoring the agencies within EOHHS that are assigned to fulfill tIns duty. EOHHS is also the single state Medicaid agency for the Commonwealth pursuant to 42 U.S.C. § 1396a(a)(5). As such, Secretary Bigby is responsible for ensuring that the defendants' Medicaid programs, including their long-term care program, their nursing facility program, and their Home and COlllinU1lity-Based Services waiver program are operated in a maImer consistent with federal requirements. She is sued in her offIcial capacity.
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54. Leslie Kirwan, Secretary of EOAF, is responsible for seeking and approving the expenditure of adequate funds from the legislature to comply with the requirements of the Medicaid program and the provision of integrated community services consistent with federal law. She is sued in her official capacity.
55. Thomas Denher, Acting Director of MassHealth and the Office of Medicaid, is responsible for the day-to-day operations of the Massachusetts Medicaid program. He oversees the development and execution of the defendants' Medicaid plan, all Medicaid policies, procedures, contracts, and practices, including those regarding services for persons with brain injuries. He is sued in his official capacity.
56. Elmer C. Bartels, Commissioner of the Massachusetts Rehabilitation Conunission ("MRC"), is responsible for directing his agency's efforts to promote employment and independent living for persons with disabilities. Commissioner Bartels oversees MRC's Vocational Rehabilitation Services, Conununity Services, and Federal Eligibility Determinations divisions. The Brain Injury and Statewide Specialized Community Services Program (BISSCS) is part of the Community Services Division ofMRC. Formerly identified as the Statewide Head Injury Program (SHIP), BISSCS is the only state program devoted to serving persons with traumatic brain injury. MassHealth has designated BISSCS as the entity responsible for applications to and screening of candidates for the defendants' Traumatic Brain Injury Waiver. Conunissioner Bartels is sued in his official capacity.
57. In light of the duties of all state defendants as set forth above, the Governor, the Secretaries ofEOHHS and EOAF, the Commissioner ofMRC and the Director of MassHealth are necessary for effective relief in this case.
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IV. FACTUAL ALLEGATIONS A. Individuals with Brain Injuries 58. Brain injuries vary in origin and effect. When brain injuries are caused by
intemal medical events such as stroke, loss of oxygen (anoxia), poisoning (toxemia) or brain tumors, they are referred to as acquired brain injuries (ABI). If they are caused by external events, like falls, auto accidents or other head wounds, they are part of a subset of acquired brain injuries called traumatic brain injuries (TBI). Both types of brain injuries can result in a similar disabling conditions that severely limit functioning, basic skills, and cognitive processing. These injuries also necessitate very similar community-based supports for affected individuals.
59. Brain injury can cause a wide range of functional changes that negatively affect an individual's basic life slalls including movement, memory, thinking, learning, sensation, communication, and behavior. It can also increase a person's risk for a variety of medical conditions and other brain disorders including Alzheimer's and Parkinson's diseases.
60. The Center for Disease Control estimates that there are cUlTently 5.3 million individuals -- or more than two percent of the U.S. population -- living with a long-tenn disability resulting from traumatic brain injury. When considering an individual's family and circles of support, brain injury touches the lives of approximately one in ten persons in the United States. Of the 1.4 million traumatic brain injuries every year, 50,000 result in deaths, 235,000 in hospitalization, and 1.1 million in emergency room visits.
61. Acquired brain injuries occur with equally staggering prevalence. For example, approximately 700,000 Americans each year suffer a new or recurrent stroke, resulting in the death of 157,000 citizens annually.
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62. Massachusetts' experience with brain injury mirrors that of the Nation. In 2004, there were 486 traumatic brain injury-related deaths among Massachusetts residents. In fiscal year 2004, there were 4,994 inpatient hospitalizations associated with non-fatal traumatic brain injuries. Approximately 1,750 individuals with brain injuries - more than thirty-five percent of those hospitalized - were discharged to a nursing or rehabilitation facility in 2004.
63. Individuals who survive serious brain injuries are likely to need hospitalization and intensive rehabilitation during the initial phase of their care and treatment. However, many individuals can subsequently reside in more integrated community settings with appropriate supports. Of the estimated 8,200 individuals with brain injuries currently in nursing and rehabilitation facilities across the Commonwealth, at least a quarter could transition to integrated community settings if appropriate services were available. Hundreds more who currently live in the community are eligible for, and at risk of, institutionalization because of the lack of adequate community services.
64. While individual needs may vary widely, most persons recovering from serious brain injuries require some level of assistance with personal care and activities of daily living, ongoing speech, occupational and physical tllerapies, medical and nursing services, vocational training or day habilitation programs, durable medical equipment, transportation, and integrated social and recreational activities. Many also require accessible living arrangements.
65. All these services are available to some degree in the community, and most are covered by Medicaid. However, there is simply an insufficient capacity and intensity of supports to meet tlle needs of nursing facility residents and others who no longer require institutional care for their brain injuries. For tllese individuals, tlle denial of access to cOlllinunity-based support services has profound consequences. The majority of individuals who sustain moderate or
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severe brain injuries experience significant medical, physical, behavioral, and cognitive problems. These conditions are exacerbated by prolonged and unnecessary institutionalization, leading to deterioration in individuals' functional independence and daily living skills, severe limitations on their community access, and negative outcomes for their social/vocational development and emotional well-being.
B. The Requirements ofthe Americans with Disabilities Act and Section 504 of The Rehabilitation Act 1. Nondiscrimination and the Integration Mandate
66. In 1990, Congress enacted the ADA, 42 U.S.C. §§ 12101-12181, to advance the civil rights of people with disabilities. The ADA's purpose and goal is "the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(I). In enacting the ADA, Congress stated that, "Historically, society has tended to isolate and segregate individuals with disabilities" and that such fonns of discrimination "continue to be a serious and pervasive social problem." 42 U.s.C. § 12101 (a)(2). Congress further determined that "The Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic sufficiency for such individuals." 42 U.S.C. § 12101(a)(8).
67. Title II of the ADA provides tllat "no qualified individual witll a disability shall, by reason of snch disability, be excluded from participation in or be denied tile benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Title II prohibits mmecessary segregation and institutionalization. 28 C.F.R. § 35.130(d) ("A public entity shall administer services, progranls and activities in tile most integrated setting appropriate to the needs of tile qualified individual with disabilities"). As tile Supreme Court stated in Olmstead, "unjustified institutional isolation of persons with
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disabilities is a f01111 of discrimination" because "[i]n order to receive needed medical services, persons with mental disabilities, because of those disabilities, relinquish participation in con1111unity life...." 527 U.S. at 600-601.
68. Discrimination on the basis of disability is also prohibited by Section 504 of the Rehabilitation Act. 29 U.S.C. § 794(a) et seq. Section 504's accompanying regulations provide that recipients offederal funds "shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.5l(d).
2. Methods of Administration 69. Both the ADA and Section 504 of the Rehabilitation Act prohibit public entities from utilizing "criteria or methods of administration" that have the effect of subjecting qualified individuals with disabilities to discrimination, including unnecessary institutionalization. 28 C.F.R. § 35.130(b)(3); § 41.51(b)(3); 45 C.F.R. § 84.4(b)(4). 70. Section 504 regulations specifically prohibit recipients of federal financial assistance from "utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of SUbjecting handicapped persons to discrimination on the basis of handicap; [or] (ii) that have the pm']Jose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons." 28 C.F.R. § 41.51 (b)(3). C. The Mandates oJthe Medicaid Program
1. The Federal Medicaid program 71. The Medicaid program, authorized and regulated pursuant to Title XIX of the Social Security Act, is ajoint federal-state medical assistance program for low-income persons. See 42 U.S.C. § 1396a et seq. One of the purposes of the Medicaid program is to provide "services to help such families and individuals attain or retain capability for independence or
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self-care." Id. At the federal level, the Medicaid program is administered by the U.S. Department of Health and Human Services' Center for Medicaid and Medicare Services ("CMS").
72. States are not required to participate in Medicaid, but once a State agrees to participate, it must comply with the requirements imposed by the Act and the regulations promulgated by the Secretary of Health and Human Services. The services that the State must provide, as well as the services they elect to provide, are described in the State plan, which is approved by the Secretary.
73. States are reimbursed by the federal govermnent for a portion of the cost of providing Medicaid benefits. Massachusetts receives approximately fifty cents in federal reimbursement for every dollar it spends on Medicaid services.
74. Pursuant to Section 1915 of the Social Security Act, the Secretary may waive certain requirements of the Act and provide that an approved State plan include as medical assistance payment for the cost of Home and Community-Based Services (HCBS). 42 U.S.C. § 1396n. Although States must apply for a specific number of persons to be served by a HCBS waiver, there is no limit to how many persons may be included on a waiver. Historically, States have routinely requested, and the federal government has regularly approved, incremental increases in the number of persons included in a waiver. 111 fact, the federal government has informed States that a limit on the nunlber of persons served by a waiver, or the lack of sufficient waiver capacity, does not excuse States from complying with other federal laws, including the ADA's integration mandate.
75. HCBS are provided to individuals pursuant to a written plan of care, following a determination that, but for the provision of such services, the individual would require the level
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of care provided in a nursing facility. 42 U.S.C. § 1396n(c)(1). If a State chooses to offera HCB S waiver program, it must inform eligible individuals about any feasible altematives available under the waiver, and give those individuals the choice of either institutional or home and community-based services. 42 U.S.C. § 1396n(c)(2)(C); 42 C.F.R. § 441.302(d).
76. A State's HCBS waiver program must also assess whether potential home and cOlmnunity-based service recipients need inpatient hospital services, nursing facility services or services in an intermediate care facility. 42 U.S.C. § 1396n(c)(2)(B).
77. A core provision of the Medicaid Act requires that States provide Medicaid benefits to all eligible individuals with reasonable promptness and for as long as medically necessary. 42 U.S.C. § 1396a(a)(8); 42. U.S.C. § 1396a(a)(10)(A); 42 C.F.R. § 435.930(a).
2. The Massachusetts Medicaid program 78. Massachusetts has chosen to participate in the Medicaid program. EOHHS is the single state agency that administers the Massachusetts Medicaid program. M.G.L. c. 118E §l. 79. As required by the Medicaid Act, Massachusetts has prepared a State plan that the Department of Health and Human Services has approved. That plan, along with relevant federal law and regulations, form the foundation for the Massachusetts Medicaid program and establish the defendants' obligations and responsibilities to Medicaid recipients. The plan includes all treatment, services, and supports required by the Medicaid Act (mandatory services), numerous services and treatment permitted by the Act (optional services), and several HCBS waiver programs. Specifically, the plan includes care and treatment in nursing facilities, physician and nursing services, a range of rehabilitative services like physical and occupational therapy, personal care assistance, durable medical equipment like wheelchairs and assistive technology,
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and certain home-based services like residential supports, vocational training and respite services.
3. Massachusetts' Waiver Programs 80. In 2001, CMS approved a Section 1915 HCBS waiver to provide a wide range of conununity services and supports solely to persons with traumatic brain injuries. 81. In 2006, MassHealth submitted a demonstration waiver to CMS under Section 1115 of the Social Security Act to provide community alternatives for persons currently residing in, or at risk of being admitted to, nursing facilities. The demonstration waiver, if approved by CMS, would incorporate the HCBS waiver for persons with traumatic brain injury, as well as other existing waiver progranls for elders. Because it does not focus on persons with brain iIljuries or even persons with disabilities, the demonstration waiver is not likely to address the longstanding needs of the plaintiffs for integrated conununity services. D. The Segregation and Discrimination ofPersons wittz Serious Brain Injuries
1. The effects of unnecessarY institutionalization on persons with brain injuries
82. The individual plaintiffs, and the majority of persons with serious brain injuries, have spent weeks or months in acute care hospitals and rehabilitative facilities. Once their acute treatment needs end, there are few community-based options for continued rehabilitative care. As a result, individuals with serious brain injuries have little choice but to be admitted to nursing and rehabilitation facilities in order to have their basic needs met.
83. Nursing facilities are not homelike environments. Most are large, selfcontained facilities, where available recreation, social activities, and medical care are provided in the sanle building where residents live, sleep, and eat. Residents share bedrooms and bathrooms. Living areas lack privacy, are sparsely furnished, and do 110t provide space for
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the personal items or belongings one would normally associate with a home. 84. The congregate nature of these facilities limits residents' personal choices,
individual expression, relationships, and freedom of association. Residents are often underoccupied and socially isolated, with limited exposure to the community or to age-appropriate peer groups. Opportunities to be outdoors or to participate in life outside the facility are limited or non-existent, except to the extent that family members can provide these opportunities for integration.
85. Because they are usually large, segregated, and isolated fTOm the rest of society, nursing and rehabilitation facilities inhibit meaningful community involvement by depriving residents of the opportunity to interact with non-disabled people in non-custodial relationships in the community. Residents often are not able to express basic human preferences, such as what to eat and where to go, or to exercise basic human rights, such as voting, working, intimacy and privacy. Residents often are denied the experiences of observing and interacting with others, enjoying the dignity and freedom ofliving in the community, and participating in the rhythm and activities of community life.
86. Active speech, occupational and physical therapies generally are not provided on an ongoing basis in nursing facilities. The plaintiffs' inability to access medically necessary, ongoing rehabilitative services has limited their potential for continued recovery, while jeopardizing the maintenance of their physical and independent living skills.
87. Perhaps most devastating for the individual plaintiffs, and the class that they represent, is the reality that these nursing and rehabilitation facility placements are indefinite, with little prospect for accessing the kinds of cormnunity support services needed to live in a less restrictive setting.
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88. This lack of appropriate community support services, and the dependency on institutional care that results, forces the plaintiffs to reside in segregated settings, away from their children and families, away from their homes and communities. This isolation places an additional burden and strain on their families, who are sometimes forced to travel considerable distances to spend time with their loved ones and to monitor their care.
2. Limitations on the state service system for individuals with brain injuries 89. There is no state agency specifically devoted to serving persons with brain injuries. In the absence of an agency with a mandate and mission to serve persons with brain uJjuries, the MRC has been arbitrarily assigned the duty to administer the Brain Injury Waiver. In addition to its focns on vocational training and related community services, MRC now also administers the small state program called BISSCS, formerly SHIP. This is the only state program that coordulates services for persons with traumatic braUl mjuries. It explicitly excludes those with other types of brain injuries. 90. Despite the size and scope of this obligation, BISSCS's resources are limited and its network is wholly inadequate to meet the need for community-based services among persons with brain injuries Ul Massachusetts. Applicants to BISSCS usually wait for years without receiving necessary services. Those residing in nursing and rehabilitation facilities usually never receive such services, and are arbitrarily excluded from the services they need to leave the institution. BISSCS' luuited array of service options is insufficient to meet the needs of individuals seeking to transition fTOm institutional settings to the C0l1111111nity, effectively denying community access to nursing facility residents based on the severity oftheir disabilities. 91. Although Massachusetts' section 1915 waiver was originally approved to serve 200 individuals per year, two years later, the defendants reduced the capacity of their only
26

Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 7 of 15
waiver program for persons with brain injury 100. They formally renewed the program in 2004 at tIns reduced level, wInch remains in effect today. This reduction is not only unprecedented, since most States, including Massachusetts, usually seek increases in the capacity of their waivers, but also unjustified, since there were clearly more, rather than less, individuals with brain injuries who needed waiver services. The federal govenunent approved this request in 2004. TIns BCBS waiver is now, and has always been, limited to persons with traumatic brain injuries, expressly excluding individuals whose injuries occurred as a result of an internal medical condition, disease or stroke.
92. BISSCS' and the Massachusetts' BCBS traumatic brain injury waiver's categorical exclusion ofpersons with acquired brain injuries, leaves these individuals without any access to state or federally-funded, community-based supports, solely because of the nature and origin oftheir disability.
E. The Defendant'S Responsibilityfor the Unnecessary Institutionalization of Persons with Brain Injuries
93. The defendants have failed to provide adequate cOlmnunity support services to individuals with brain injuries. Indeed, they have categorically excluded individuals with acquired brain injuries from accessing the only state and federally-funded programs delivering integrated connnunity services.
94. Furthermore, the defendants have failed to develop and implement a comprehensive plan for placing qualified persons with brain injuries in the community and avoiding their prolonged, unnecessary institutionalization. Instead, wi1h full knowledge of the need and numbers of persons with brain injuries who are Ulmecessarily institutionalized in nUl'sing facilities, the defendants have admitnstered the litnited cOlmnUllity programs that do exist in a maImer which effectively excludes persons with serious brain injuries in nursing
27

Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 8 of 15
facilities. As a result, there have been few persons with brain injuries who have been able to leave nursing and rehabilitation facilities over the past decade. Instead, there is an increasing number of such individuals who are now needlessly segregated and even more who are at imminent risk of such segregation.
95. Moreover, by failing to provide a sufficient array of cOlmnunily settings and supports for persons with brain injuries, the defendants have effectively required such individuals to become institutionalized as a condition of obtaining long-term care.
96. The defendants have administered the state Medicaid system and its programs in a malmer that perpetuates the segregation of persons with brain injuries. These methods of administration arbitrarily limit access to integrated, cOlmnunity support services by persons with brain injuries in nursing facilities. Specifically, limitations on the availability of Medicaidfunded, cOlmnunity support services result from:
(1) the lack of information provided to individuals with brain injuries and their fanlilies about community-based services and the HCBS waiver specifically;
(2) inadequate assessments to determine an individual's ability to benefit from cOlmnunity support services;
(3) the failure to provide nursing alld rehabilitation facility residents and their guardians with a meallingful choice of community as well as institutional servlCes;
(4) the failure to offer meallingful access to the cOlmnunity services that are available, alld the discriminatory exclusion of persons with severe brain injuries and/or acquired brain injuries from the few cOlmnunity services that do exist;
28

- - - - - . ------~-~~------

--------

Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 9 of 15

(5) decisions and actions that intentionally limit the nnmber and availability of conmlUnity services, including federal funding for such services;
(6) policies, procedures, restrictions and program definitions which unreasonably limit access to ongoing rehabilitative services for individuals with brain injuries; and
(7) inadequacies in the funding of con1Il1wlity support services, including the wU'easonable refusal to seek available federal fuoding for such services, that the defendants are authorized to provide for Medicaid-eligible, individuals with brain injuries.
V. LEGAL CLAIMS 97. In their capacities as state officials, and under color oflaw, the defendants have
subjected the plaintiffs to prolonged and unnecessary institutionalization, resulting in violations of the ADA, Rehabilitation Act, and Medicaid Act.
Count I: The Americans with Disabilities Act 98. The plaintiffs re-allege paragraphs I through 97 as though fully set forth herein. A. Violation ofthe ADA's Integration Mandate 99. The plaintiffs and the members of the plaintiff class are qualified individuals with disabilities within the meaning of the ADA. 42 U.S.C. § 12131(2). 100. Title II oftlle ADA requires that "a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). 101. The individual plaintiffs and plaintiff class members qualify for the defendants' program oflong-term rehabilitative services, and would benefit from C0111Il1unity support

29

Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 10 of 15
services. Although community programs are the most integrated setting appropriate to meet their needs, the plaintiffs remain institutionalized in nursing or rehabilitation facilities, or at imminent risk of such institutionalization. By denying them access to existing cOlmllunity programs, and by requiring that plaintiffs to be confined in the segregated institutional settings in order to receive rehabilitative services, defendants violate the ADA's integration mandate.
102. It would not fundamentally alter the defendants' programs, services, or activities to provide plaintiffs with the supports necessary to reside in the community. The defendants do not have a comprehensive, effectively working plan for serving people with brain injuries in the most integrated setting appropriate for their needs.
B. Methods ofAdministration 103. Regulations implementing Title II of the ADA provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [01'1 (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the 0 bj ectives of the entity's program with respect to individuals with disabilities ...." 28 C.P.R. § 3S.130(b)(3). 104. The defendants' criteria and methods of administering Massachusetts' long-tenll care system for persons with brain injuries have subjected the plaintiffs to unnecessary and unjustified segregation. The defendants administer the only joint state and federally-funded programs for persons with brain injuries in a maImer that fails to infonll nursing and rehabilitation facility residents of the prograIllS, fails to assess them for the programs, fails to offer them a choice of the waiver prograIll, aIld fails to afford them equal access to these prograIllS.
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Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 11 of 15
C. Discrimination Based on Nature and Severity ofDisability 105. The ADA prohibits discrimination on the basis of disability. 42 U.S.C. § 12132 et seq. The defendants illegally discriminate against qualified persons with disabilities who reside in nursing and rehabilitation facilities based upon the nature and severity of their disability. Both the defendants' state and federally-funded commnnity programs totally exclude persons with acquired brain injuries and effectively exclude those with the most serious brain injuries. 106. The exclusion of individuals with acquired brain injuries constitutes discrimination on the basis of disability and results in their continued, mmecessary segregation in violation of the ADA. The few commnnity supports and services that are available in the Commonwealth are not of sufficient duration and intensity to allow those with serious brain injuries to transition from nursing and rehabilitation facilities to the community, thus discriminating against the plaintiff class based on the severity of their disabilities.
Count II: Section 504 of the Rehabilitation Act 107. The plaintiffs re-allege paragraphs 1 through 106 as though fully set forth herein. 108. The plaintiffs are qualified individuals with disabilities nnder Section 504 of the Rehabilitation Act. 29 U.S.C. § 794(a). 109. BOBBS and its state agencies receive federal financial assistance. 110. The regulations accompanying Section 504 provide that: "[r]ecipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.P.R. § 41.51(d). 111. These regulations further prohibit recipients of federal financial assistance from "utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of SUbjecting handicapped persons to discrimination on the basis of handicap; [or] (ii) that have the purpose
31

Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 12 of 15
or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons." 28 C.F.R. § 41.51(b)(3); 45 C.F.R. § 84.4(b).
112. The individual plaintiffs and plaintiff class members qualify for the defendants' program of long-term rehabilitative services, and would benefit from community support services. Although the community is the most integrated setting appropriate to meet their needs, the plaintiffs remain institutionalized in nursing and rehabilitation facilities, or at risk of such institutionalization. By denying them access to existing community programs, and by requiring that plaintiffs and class members be confined in the segregated institutional settings in order to receive needed rehabilitative services, the defendants violate § 504.
113. The defendants' criteria and methods of administering their system of long-term services for people with serious brain injuries subj ect plaintiffs to illegal discrimination and unnecessary segregation.
114. It would not fundamentally alter the defendants' programs, services, or activities to provide the plaintiffs with the services necessary to allow them to live in the corrul1unity.
Count III: Title XIX of the Social Security Act 115. The plaintiffs re-allege paragraphs 1 through 114 as though fully set forth herein. 116. Title XIX requires states to provide Medicaid benefits to all eligible persons with reasonable promptness and for as long as medically necessary. 42 U.S.C. §§ 1396a(a)(8); 1396a(a)(10)(A). Medicaid waiver programs must be administered in a fair and efficient maImer, must inform persons about the prograJll, aIld must afford qualified persons a choice of prograIl1 services. 42 U.S.C. § 1396n(c). Provision of services must not be delayed by the agencies' administrative procedures. 42 C.F.R § 435.930(a).
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Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 13 of 15
117. The defendants have failed to provide medically necessary, specialized therapies to eligible nursing home residents with reasonable promptness, in violation of 42 U.S.C. §§ 1396a(a)(8); 1396a(a)(10)(A).
118. The defendants also have failed to provide residents of nursing and rehabilitation facilities with brain injuries: 1) notice of, and equal opportunities to apply for, waiver services; 2) an assessment oftheir eligibility for such services; and 3) meaningful choice between institutional and RCB waiver services, in violation of 42 U.S.C. § 1396n(c). VI. PRAYERS FOR RELIEF
WHEREFORE, the plaintiffs respectfully request that tillS Court: 1. Certify this case a class action pursuant to Fed. R. Civ. P. 23; 2. Grant preliminary and permanent injunctive relief requiring the defendants to:
(1) infonn residents of nursing and rehabilitation facilities, their guardians, families, and all members of the plaintiff class of all state and federally-funded programs that provide community services to persons with brain injuries; assess all qualified residents of nursing and rehabilitation facilities for such programs; offer eligible residents a choice of such programs; and administer such programs in a malmer that ensures equal access for such residents, regardless oftile type or severity oftheir brain injuries; (2) develop and implement a comprehensive, effectively working plan that provides integrated, community settings alld supports to residents of nursing and rehabilitation facilities with brain injuries alld all members of the plaintiff class, regal'dless ofthe type or severity of their brain injuries; (3) implement such plall in a malmer that ensures that any wait list for community settings and supports moves at a reasonable pace, so tI1at all current
33

Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 14 of 15
nursing and rehabilitation facility residents with brain injuries and all members of the plaintiff class who would benefit from community placement are actually placed within five years; and (4) promptly provide Medicaid-covered rehabilitative services to residents with brain injuries in nursing and rehabilitation facilities for as long as medically necessary, in order to promote their rehabilitation and opportunities for connnunity living and/or prevent the deterioration of their basic functioning. 3. Issue a declaratory judgment stating that the defendants have violated the Americans witll Disabilities Act, the Rehabilitation Act, and the Social Security Act in their failure to prevent the unnecessary segregation and institutionalization of persons witll brain injuries and their failure to provide community-based services to Medicaideligible individuals with brain injuries in nursing and rehabilitation facilities and other members of the plaintiff class; 4. Award tlle plaintiffs costs of this litigation and their reasonable attomeys' fees; and, 5. Grant such further and otller relief as may be just and proper.
RESPECTFULLY SUBMITTED, THE PLAINTIFFS, BY THEIR ATTORNEYS,
/s/ Steven J. Schwartz Steven J. Schwartz (BBO# 448440) Kathryn Rucker (BBO# 644697) Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024
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Case 3:07-cv-30084-MAP Document 7-2 Filed 06/18/07 Page 15 of 15

Dated: June 18, 2007

/s/ Richard A. Johnston Richard A. Johnston (BBO# 253420) Michael R. Dube (BBO# 654748) Miranda Hooker (BBO# 661569) Anne McLaughlin (BBO# 666081) Wilmer Cutler Pickering Hale and Dorr, LLP 60 State Street Boston, MA 02109 (617) 526-6000

35

 </s> Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 1 of 23
EXHIBIT 1

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 2 of 23

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
Western Division

Catherine Hutchinson, et a!.
Plaintiffs,
v.
Deval L. Patrick, et a!.
Defendants.

)

)

)

)

)

Civil Action

)

No. 07-30084-MAP

)

)

)

)

)

FINAL COMPREHENSIVE SETTLEMENT AGREEMENT

In order to resolve all claims in tlus matter, tl1e parties agree as follows:

I.

Community Services Development

1. The defendants will talce tl1e following actions to expand community

residential and nonresidential supports for Massachusetts Medicaid-eligible persons with

an

acquired

brain

injury

(hereafter,

"persons

with

an

acquired

brain

injury"

1 )

who

are

in

nursing facilities or rehabilitation hospitals.

A. New Acquired Brain Injury Waiver Program

2. Witllln six montlls of tl1e Court's approval of tlus Settlement Agreement,

the defendants will submit a proposal to the Centers for Medicare and Medicaid Services

(CMS), pursuant to Section 1915(c) oftl1e Social Security Act, for a new waiver program

to serve tlrree hundred persons with an acquired brain injmy (hereafter, tl1e "ABI Waiver"

or "Waiver"). The plaintiffs through com1sel will have ilie opportunity to review and

1 When used anywhere in this agreement, "acquired brain injury" or "ABr' refers to all fonns of brain injuries that occur after age 22, including without limitation brain injuries caused by external force, which are often referred to as "traumatic brain injuries" or "TBI," but not including Alzheimer's Disease and
similar neuro-degenerative diseases the primary manifestation of which is dementia.

1

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 3 of 23
cmmnent on the ABI Waiver application prior to submission. To accomplish the purposes of this Settlement Agreement, the defendants may either apply for a single 1915(c) waiver or apply for two concurrent 1915(c) waivers.
3. The community services provided in the ABI Waiver program will include all of the community residential and nonresidential services currently provided in the Traumatic Brain Injury Waiver operated by the Massachusetts Rehabilitation Cmmnission (MRC), except that residential habilitation shall be limited to no more than 100 Waiver participants with an acquired brain injury at any point in time.
4. ABI Waiver services will be provided pursuant to an Individualized Service Plan (ISP) that is based upon person-centered principles and is developed along with the Waiver participant. ABI Waiver participants will be provided an ISP, annual updates of the ISP, and the services set forth in their ISP.
5. In the ABI Waiver application, the defendants will describe (a) policies and procedures for the administration of the ISP planning process; and (b) an administrative fair hearing process as described in 42 C.P.R. 431.200, et seq., Subpart E., for disputing the following actions by MRC: (1) a determination denying participation in the ABI Waiver; or (2) denials, suspensions, reductions, and te1minations of the service requirements of an ISP, including a substantial failure to implement the service requirements of the ISP witlun tl1e terms and conditions of the ABI Waiver as approved by CMS. The plaintiffs through their counsel will have an opportunity to review and co1mnent on the draft policies and procedures before tl1ey are finalized.
6. The ISP will be developed by an interdisciplinary team that is coordinated by the service coordinator and that includes the individual, Ius/her guardian if any,
2

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 4 of 23
relevant providers, and representatives of the agency responsible for operating the ABI Waiver.
7. The ISP plmming process will detennine: (1) what ABI Waiver community services m1d supports are needed to allow the person to live safely in the community; aJ1d (2) what ABI Waiver transition services are needed by the person residing in the nursing facility or rehabilitation hospital, for up to sixty days prior to discharge into the connnuniiy, to facilitate the person's safe trm1sition to the connnunity.
8. In order to comply with federal cost neutrality requirements for Section 1915(c) waivers, and purs=t to 42 CFR 441.301(a)(3), the defendants may refuse entrance to the ABI Waiver to any person with an acquired brain injury when the defendm1ts reasonably expect that the =ual Medicaid costs of care furnished to that person with an acquired brain injury, including residential habilitation illld other ABI Waiver services plus Title XIX state plm1 services, will exceed $164,131. The defendm1ts may refuse entrm1ce to the ABI Waiver to m1y person with an acquired brain injury when the defendants reasonably expect that the =ual Medicaid costs of cm-e furnished to that person with aJl acquired brain injury, including ABI Waiver services other than residential habilitation and Title XIX state plan services, will exceed $87,919. These cost limits shall be specified in Appendix B-2 of the ABI Waiver proposal sub1nitted to CMS for its approval, and shall be updated mmually to reflect current rates of payment.
9. Persons with an acquired brain injury who are participating in tl1e ABI Waiver and who are to receive residential habilitation will be offered tl1e choice to receive services in the most integrated setting appropriate to their needs, such as tl1eir own homes or apartments, shared living aJTaJlgements such as group homes, or with their
3

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 5 of 23
families. This provision does not create an obligation to purchase a house, apartment, or other dwelling for a class member enrolled in the ABI Waiver, and is subject to the net state cost limit in ~10 and all other tenns of the ABI Waiver.
10. The net state cost for ABI Waiver services and for all other Medicaid and state-funded services for participants in the ABI Waiver program shall not exceed $15 million over three years from the date of CMS approval of the ABI Waiver. In order to ensure that the net state cost does not exceed this limit, the defendants will estimate the total annual state cost for each ABI Waiver participant at the time of enrollment and will reevaluate, twice a year, the projected total cumulative state cost for each ABI Waiver participant.2 In the event that the net state cost is projected to exceed the $15 million net state cost limit, the defendants may initiate corrective action to bring the ABI Waiver into alignment with this limit. Conective actions may include, but shall not be limited to, the submission of amendments to the approved ABI Waiver, a freeze on new ABI Waiver emollments, a reduction in the number of prospective ABI Waiver participants, changes in the ABI Waiver service specifications, limitations on the amount of ABI Waiver services or changes in the individual cost limits described in~ 8.
11. Appendix B of the ABI Waiver proposal will provide that all class members in nursing facilities or rehabilitation hospitals can apply for the ABI Waiver. Appendix B will specify:
2 The $15 million net state cost cap refers to the net cost, counting federal financial participation (FFP), of ABI Waiver services and of all other Medicaid and state-funded services and supports for participants in the ABI Waiver program, including administrative and case management costs, compared to the net cost, counting FFP, of all Medicaid and state-funded services and supports for those participants if they were not enrolled in the ABI Waiver program. This calculation shall include historically based growth rate projections ru1d actual costs to date for each service included in the calculation.
4

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 6 of 23
a. the number of participants that the defendants expect to serve during each year that the ABI Waiver is in effect;
b. applicable federal and state Medicaid requirements; c. other applicable eligibility requirements, including: (i) the requirement that the prospective participant can be safely served in the
n community within the terms of the ABI Waiver and the cost limits described in
8 and 10 above, and consistent with CMS requirements for a Home- and Community-Based Service (HCBS) waiver; and (ii) any requirement with respect to nursing facility length of stay as a prerequisite to ABI Waiver participation; and
d. procedures for the evaluation and reevaluation of level of care. Appendix B will also describe an orderly, rational, and fair process for the consideration of applications for enrollment in the ABI Waiver and for the allocation of openings in the ABI Waiver. The plaintiffs through counsel will have the opportunity to review and cmmnent on Appendix B of the ABI Waiver proposal prior to submission to CMS. 12. The defendants will develop and implement policies and procedures for administration of the ABI Waiver conceming the following: (1) waiver application; (2) eligibility criteria; (3) appeals, including as stated in~ 5, above; (4) needs assessment; (5) service provision; and (6) establishing a process for quality management that incorporates each of the seven elements and sub-elements ofCMS's HCBS Quality Framework, as described in CMS's August 29, 2002 letter to State Medicaid Directors. The plaintiffs through counsel will have an opportunity to review and cmmnent on these policies and procedures before they are finalized.
5

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 7 of 23
13. For the ABI Waiver that covers residential habilitation services, eligible persons with an acquired brain injury as defined in footnote 1 above will participate in the ABI Waiver according to the following schedule:
a. Not later than six months after CMS approval of the ABI Waiver, the defendants will begin implementation of the education and outreach plan described in~ 18, below.
b. Not later than nine months after CMS approval of the ABI Waiver, the defendants will begin to select eligible persons with an acquired brain injury for participation in the ABI Waiver, subject to the cost neutrality limit of~ 8 above.
c. Within fifteen months after CMS approval of the ABI Waiver that includes residential habilitation services, at least 35 Waiver pmiicipants with an acquired brain injury will begin to receive residential habilitation services, subject to the cost neutrality limit of~ 8 above.
d. Within three years after CMS approval of the ABI Waiver that includes residential habilitation services, 100 Waiver participants with an acquired brain injury will begin to receive residential habilitation services, subject to the cost neutrality limit of~ 8 above and with the total number subject to the net state cost limit in ~ 10 above. 14. For the ABI Waiver that covers services other than residential habilitation services, eligible persons with a11 acquired brain injury as defined in footnote 1 above will pmiicipate in the ABI Waiver, according to the following schedule:
6

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 8 of 23
a. Not later than six months after CMS approval of the ABI Waiver, the defendants will begin implementation of the education and outreach plan described in~ 18, below.
b. Not later than nine months after CMS approval of the ABI Waiver, the defendants will begin to select eligible persons with an acquired brain injury for participation in the ABI Waiver, subject to the cost neutrality limit of~ 8 above.
c. Within 15 months after CMS approval of the ABI Waiver for services other than residential habilitation, at least 70 Waiver participants with an acquired brain injury will begin to receive the ABI Waiver services other than residential habilitation, subj ectto the cost neutrality limit of~ 8 above.
d. Within three years after CMS approval of the ABI Waiver for services other than residential habilitation, 200 Waiver participants with an acquired brain injury will begin to receive the ABI Waiver services other than residential habilitation, subject to the cost neutrality limit of~ 8 above and with the total number subject to the net state cost limit in~ 10. 15. The defendants previously have submitted for CMS approval a proposal for a new Section 1115 demonstration project, called the Community First Demonstration Project. In the event that CMS does not approve the ABI Waiver, or approves it to serve fewer than 100 persons with an acquired brain injury with residential habilitation services, the defendants will monitor the Transition Group of the Community First Demonstration Project (hereafter, the "Transition Group"), as provided in~~ 20 tluough 26, for one additional year beyond the commitment described in ~ 21, below.
7

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 9 of 23

16. The defendants will provide case management for an persons enroned in

the ABI Waiver.

17. A senior staff person within the Executive Office of Health and Human

Services will oversee and assist in the implementation of the ABI Waiver, including

education and outreach efforts outlined in ~ 18 and data collection and reporting outlined

in~ 29. MRC shall be responsible for operating the ABI Waiver and for ensuring that the

ABI Waiver requirements of this Settlement Agreement are implemented.

B. Education and Outreach Regarding Waiver Services

18. The defendants will develop and assist in implementing an education and

outreach plan for persons with an acquired brain injmy who are in nursing facilities and

rehabilitation hospitals. The plan will describe an the services and supports that are

available under the ABI Waiver and provide information regarding the Community First

Demonstration Project to the extent available. The defendants will begin implementation

of the plan as provided in~~ 13-14. The plaintiffs through counsel will have an

opportm1ity to review and comment upon the plan. The plan will include at least the

fonowing elements:

a.

the provision of written materials, such as mailings to persons with

an acquired brain injmy and their guardians and family members known to the

plaintiffs or defendants through identification by advocacy organizations or

others, and referral information for clinical department heads, case managers and

social work staff at licensed facilities. The defendants will ask nursing facilities,

rehabilitation hospitals, commm1ity service providers, and long-term care options

8

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 10 of 23
counseling entities, to provide these written materials to persons known to such providers or entities to have an acquired brain injury;
b. information sessions for residents of nursing facilities and rehabilitation hospitals that specialize in serving persons with an acquired brain injury;
c. a partnership with family and advocacy groups, including the Brain Injury Association of Massachusetts (BIAMA), in developing and implementing an outreach program, funded by the defendants, to persons with an acquired brain injury in nursing facilities and rehabilitation hospitals, including their guardians and family members, concerning the ABI Waiver services and the Community First Demonstration Project, and with particular attention to identifying and facilitating outreach towards persons with an acquired brain injury in units that specialize in the treatment of brain injuries;
d. assistance to persons with an acquired brain injmy and their guardians and family members who seek information or support in applying for ABI Waiver services; and
e. education and outreach to the staff of nursing facilities and rehabilitation hospitals regarding the ABI Waiver criteria, procedures and services, and the Comn1U11ity First Demonstration Project, as well as the role of family and advocacy groups, including BIAMA, in the partnership described in (c) and in providing the individual assistance described in (d).
9

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 11 of 23
C. The Transition Group ofthe Community First Demonstration Project 19. The Community First Demonstration Project, previously referenced in~
15, is described in a project proposal submitted to CMS in December 2006 under Section 1115 of the Social Security Act. As stated in the project proposal submitted to CMS, the Community First Demonstration Project is "designed to prevent and/or delay admission to, or facilitate discharge from, nursing facilities for targeted elders and adults with disabilities in Massachusetts." Assuming that CMS approves that proposal, the defendants will take reasonable actions to implement the Community First Demonstration Project proposal as approved by CMS, including the provisions relating to the "Imminent Risk Group," subject to the limits of the Demonstration Project as approved.
20. It is the defendants' intent that upon implementation, for each of the five years of the Community First Demonstration Project and for each of the three years of its initial renewal period, if any, at least twenty percent (20%) of the persons in the Transition Group will be persons with an acquired brain injury ("the enrollment percentage"). The defendants will monitor the Transition Group at least semi-annually to assess progress towards achieving the enrollment percentage and to determine ifthe enrollment percentage has been achieved for each year.
21. If the monitoring described in ~ 20 of tiJ.i.s Agreement indicates tl1at less than twenty percent of the persons in tl1e Transition Group in a given year are persons with an acquired brain injury, the defendants will conduct an analysis of the reasons for the percentage distribution. In conducting tl1at analysis, the defendants will collect and consider tl1e following aggregate data, along witl1 other information: tl1e number of applications for the Transition Group received from persons witl1 an acquired brain
10

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 12 of 23
injury; the number of applications for the Transition Group from persons with an acquired brain injury that were denied, if any, and the basis for denial (by category); and the number of persons with an acquired brain injury on a waiting list for the Transition Group, to the extent a waiting list exists. After conducting that analysis, the defendants will talce whatever reasonable actions they deem appropriate to achieve the emollment percentage, including efforts to maximize the knowledge and understanding of persons with an acquired brain injury and their fan1ilies and guardians about Transition Group services. The defendants may talce any actions, including, without limitation, the following:
a. an enhancement of the education and outreach activities described in~ 18; and
b. identification and referral of nursing facility residents - known to MRC staff and case managers or BIAMA- who have an acquired brain injury, including those under 60 years of age. The plaintiffs through counsel will have an opportunity to review and comment upon the proposed actions. The defendants will use their best efforts in perfmming these actions to ensure that twenty percent of the persons in the Transition Group are persons with an acquired brain injury. As a result of the actions described above, and assuming that at least twenty percent of the Transition Group applicants are persons with an acquired brain injury, the defendants will, over the duration of the monitoring obligation set forth in ~ 20 above, achieve the enrollment percentage. 22. For monitoring purposes, the enrollment percentage will be calculated with respect to persons in nursing facilities with an acquired brain injury, excluding those
11

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 13 of 23
with Alzheimer's Disease and similar neuro-degenerative diseases the primary manifestation of which is dementia.
23. Persons with an acquired brain injury who move from a nursing facility to the community and are part of the Commwuty First Demonstration Project's Imminent Risk Group will have access to those commwlity services and supports available under the Connnwlity First Demonstration Project for all persons in the Imminent Risk Group.
24. If CMS approves the Community First Demonstration Project, persons with an acquired brain injury who are moving from the Transition Group to the commwlity and will enroll in the Imminent Risk Group of the Demonstration Project may be offered residential habilitation. Any such persons who are offered residential habilitation will be offered the choice to receive services in the most integrated setting appropriate to their needs, such as their own homes or apartments, shared living arrangements such as group homes, or with their families. Tlus provision does not create an obligation to pmchase a house, apartment, or other dwelling for a class member, and is subject to all of the tenns of the Community First Demonstration Project.
25. The defendants will develop and implement policies and procedmes for administration of the Transition Group and the Innninent Risk Group concerning the following: (1) application process; (2) eligibility criteria and determinations; (3) appeals of denials, suspensions, reductions, and tenninations of services through a fair hearing process; (4) needs assessment and care plan development consistent with the principles of the HCBS Quality Framework (Factor 2); (5) service provision; and (6) establishment of a process for quality management that is consistent with or incorporates each of the elements and sub-elements of CMS's HCBS Quality Framework, as described in CMS's
12

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 14 of 23
August 29, 2002 letter to State Medicaid Directors. The defendants will ensure that those staff responsible for assessing the needs of and developing a care plan for a person with an acquired brain injury who is enrolled in the Transition Group will have the appropriate knowledge and understanding of the needs of persons with an acquired brain injury. The plaintiffs through counsel will have an opportunity to review and cmun1ent on these policies and procedures before they are finalized.
26. If in any year of the Community First Demonstration Project, the participation in the Transition Group by persons with an acquired brain injury exceeds the enrollment percentage, any amount above this percentage may be applied to the calculation of the emollment percentage in the subsequent year. If at the end of the initial five years of monitoring, except as modified by the provisions of~ 15, above, the participation in the Transition Group by persons with an acquired brain injury on average exceeds thirty percent, the obligation to engage in monitoring during the initial renewal period, as outlined in~ 20, will be deemed fulfilled.
27. Following CMS approval of the Coinmllllity First Demonstration Project, the defendants will submit a protocol doclll11ent to CMS that will describe the applicable Medicaid eligibility requirements for the Transition Group, and the requirements and procedmes for participation in the Transition Group. The protocol doclJlnent will describe case management and the plan of care process for the participants in the Transition Group. The protocol doclllnent will also describe the procedures that the defendants will employ to inform persons and their families and guardians about the services and supports that are available in the community under the CoiiDTillllity First Demonstration Project, and how to apply for such services, including the eligibility
13

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 15 of 23
criteria, the waiting list, if any, and any appeal process for the denial of such services and supports. The protocol document will describe an orderly, rational, and fair process for the allocation of openings in the Transition Group. The plaintiffs through counsel will have the opportunity to review and conunent on the protocol docun1ent prior to submission to CMS.
28. A senior staff person within the Executive Office of Health and Human Services will oversee the implementation of~~ 20 through 27 and~ 30. The Commonwealth shall designate an agency or agencies to be responsible for operating the Community First Demonstration Project and for ensuring that the Community First Demonstration Project requirements of tlus Settlement Agreement are implemented.
D. Data Collection and Reporting 29. For the ABI Waiver, the defendants will collect and report senli-annually to tl1e plaintiffs on tl1e following aggregate data for the duration of the monitoring of the Transition Group outlined in~ 20, based on the defendants' experience during the prior six-month period with respect to persons participating in the ABI Waiver:
a. the number of applications received for the ABI Waiver; b. the number of persons witl1 an acquired brain injury enrolled in the ABI Waiver; c. the number of applications for tl1e ABI Waiver that were denied, if any, and the basis for denial (by category); d. the number of persons on a waiting list for the ABI Waiver, to tl1e extent a waiting list exists;
14

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 16 of 23
e. the ABI Waiver services provided to persons participating in the ABI Waiver; and
f. the number of persons participating in the ABI Waiver who live in the COlllillUnity. 30. For the Transition Group, the defendants will collect and report semialmually to the plaintiffs on the following aggregate data for the duration of the monitoring outlined in~ 20, based on the defendants' experience during the prior sixmonth period with respect to persons with all acquired brain injury participating in the Tral1sition Group:
a. the number of applications received for the Trallsition Group; b. the number of persons with all acquired brain injury enrolled in the Trallsition Group; c. the number of applications for the Transition Group that were denied, if ally, and the basis for denial (by category); d. the number of persons on a waiting list for the Transition Group, to the extent a waiting list exists; e. the Trallsition Group services provided to persons participating in the Trallsition Group; alld f. the number of persons who paliicipated in the Transition Group who live in the conmmnity. 31. To the extent authorized by protective orders in this case, the defendallts shall provide the plaintiffs' counsel with (a) the names, addresses, alld telephone numbers, of persons with all acquired brain injury who al·e participating in the ABI
15

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 17 of 23
Waiver, and oftheir guardians, if any, and the ISPs ofsuchABI Waiver participants; (b) the names, addresses, and telephone numbers of persons with an acquired brain injury who are participating in the Transition Group, and of their guardians, if any; and (c) the names, addresses, and telephone numbers ofpersons with an acquired brain injury who have moved from the Transition Group to the Imminent Risk Group ofthe Community First Demonstration Project, and of their guardians, if any. This provision does not create a continuing obligation to provide the above information after the individual is living in the COllUUUUity. II. Nursing Facility Admission and Services
32. The defendants will not pay for the stay of a person with an acquired brain injury in a nursing facility unless the requirements in duly promulgated regulations set forth at 130 CMR 456.407 and 130 CMR 456.408 are met. The defendants will assist nursing facilities, long-term care options counseling entities and other community-based organizations inmalcing available to individuals in nursing facilities or plaru1ing to enter nursing facilities, information about community service options.
33. For persons with an acquired brain injury in nursing facilities who are preparing to transition to the community tlu·ough participation in the ABI Waiver and/or the Community First Demonstration Project, the defendants will make payments to therapists in accordance with duly promulgated regulations set forth at 130 CMR 432 and 130 CMR 450 for ongoing therapy services. Any appeal of the denial, suspension, reduction or termination of payment for therapy services will be pursuant to the fair hearing process described in 42 C.P.R. § 431.200 et seq.
16

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 18 of 23
34. The ABI Waiver service coordinator and the Commnnity First Transition G-roup case manager shall malce best efforts to commnnicate witl1licensed clinicians in the nursing facility who are responsible for the care of an ABI Waiver participant in a nursing facility, or a Transition G-roup participant in a nursing facility, so that tl1e transitional service component of the transition plmming process is coordinated with the pmiicipant's medical cm·e, including necessm·y therapies. III. Funding
35. The defendants' obligations nnder iliis Agreement are subject to appropriations by the Legislature and the availability ofFFP for the ABI Waiver, State Plan services, m1d the Connnunity First Demonstration Project. In order to implement iliis Agreement, which resolves tl1e federal statutory claims set forth in tl1e Amended Complaint, tl1e defendants will submit budget requests as needed m1d will, consistent witl1 Art. 63 ofthe Massachusetts Constitution, malce their best efforts to obtain tl1e fimding necessary to implement tllis Agreement. IV. Court Approval and Enforcement
36. Tllis Settlement Agreement represents a full and fair resolution oftl1e claims for relief alleged in tl1e Complaint.
37. In preparation for a faimess hem·ing pursuant to Fed. R. Civ. P. 23(e), tl1e parties will jointly file a motion for preliminary approval oftllis Settlement Agreement together witl1 a notice of tllis settlement tl1at describes the process for filing written objections and includes tl1e date for tl1e faimess hearing. The pm1:ies will cooperate in presenting tllis Agreement to the Comi at the faimess hearing.
17

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 19 of 23

38. This Settlement Agreement shall be subject to the approval of the Court. If the Agreement is so approved, it may be enforced only as set forth in ~~ 40 tlll"ough 44

below. 3 9.

If the Court does not approve tllis Settlement Agreement in all respects,

tl1e Agreement shall be null and void and of no force and effect, and nothing herein shall be deemed to prejudice tl1e position of any of the parties with respect to the litigation or

otl1erwise, and neither tl1e existence of this Settlement Agreement, nor any of its terms or

provisions, nor any of tl1e negotiations or proceedings com1ected with it, shall be
admissible in evidence, referred to for any purpose in the litigation or in any other

litigation or proceeding, or construed as an admission, presumption or concession by

defendants of any liability or me tmm of any ofme allegations in this litigation. 40. TI1e Court shall retain jurisdiction to hear and adjudicate noncompliance
motions filed in accordance witl1 ~~ 43 t!U"ough 44, below.

41. No less tl1an tlli:rty days prior to filing any noncompliance motion, me

plaintiffs shall notify the defendants of any alleged noncompliance witl1 tllis Settlement

Agreement and request a meeting for tl1e purpose of attempting to resolve tl1e problems

identified by tl1e plaintiffs regarding the defendants' alleged noncompliance. 42. Should tl1e parties fail to resolve tl1e problems identified by tl1e plaintiffs, tl1e

parties shall engage in mediation witl1 a mutually acceptable mediator. 43. Should tl1e parties fail to resolve, tiU"ough mediation, any problems identified
by tl1e plaintiffs, me plaintiffs may file a motion with the Court seeking a judicial

detemlination that tl1e defendants are not substantially complying with tl1e Settlement Agreement. The defendants shall have no less tl1an tllirly days to respond to any such

18

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 20 of 23
motion. If the Court finds that the defendants have not substantially complied with the Settlement Agreement, it may enter an order consistent with equitable principles, but not an order of contempt, that is designed to achieve compliance.
44. Ifthe plaintiffs contend that the defendants have not complied with an order entered under the preceding paragraph, they may, after reasonable notice to defendants, move for further relief from the Court to obtain compliance with the Court's prior order. In ruling on such a motion, the Court may apply equitable principles and may use any appropriate equitable or remedial power then available to it.
45. The Court shall dismiss this action with prejudice after the defendants have perfonned their obligations under~~ 13- 15, ~~ 20-21, and~ 26 of this Settlement Agreement and at that time are in substantial compliance with all other obligations under the Settlement Agreement. The defendants will provide the plaintiffs with at least sixty days' notice of their intent to seek dismissal. If the parties agree that the defendants are entitled to dismissal, the parties will execute and file with the Court a joint motion for dismissal with prejudice of all claims for relief arising out of tl1e Complaint. If the parties do not agree, the defendants may independently move for entry of such a dismissal. The plaintiffs shall have up to sixty days to oppose such a motion. V. Miscellaneous
46. The parties shall meet quarterly to discuss any issues relevant to implementation ofthe Settlement Agreement.
47. Eitl1er party may move to vacate tl1e Settlement Agreement and tl1e plaintiffs may proceed with litigating tl1e case in any of the following circumstances:
19

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 21 of 23
a. If the Legislature does not appropriate and the defendants do not obtain from other sources the necessary funding to perform their obligations under this Settlement Agreement;
b. CMS does not approve the CoJlllnunity First Demonstration Project described herein or approves it in a malmer that impedes or precludes compliance with the provisions of this Settlement Agreement; or
c. The defendallts substantially modify, cap, or discontinue the ABI Waiver services or service capacity for participants in the ABI Waiver, as described in ~~ 2 through 14 above, in a malmer that impedes or precludes compliance with the provisions of this Settlement Agreement. 48. By mutual agreement, the parties may chailge the terms ofthis Settlement Agreement, including, but not liinited to, the timetables for taking specific actions, provided that such mutual agreement is memorialized in writing, signed by the parties and approved by the Court. 49. The headings of the sections of this Settlement Agreement are for convenience only alld will not affect the construction hereof. 50. This Settlement Agreement constitutes the entire agreement of the parties, alld supersedes all prior agreements, representations, negotiations, and undertalcings not set forth or incorporated herein. 51. Neither tlus Settlement Agreement, nor allY of its terms or provisions, nor allY of tl1e negotiations or proceedings cOJmected with it, shall be construed against either party as an admission, presmnption, concession or finding of liability or wrongdoing.
20

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 22 of 23
52. The parties will, by motion, jointly seek a modification of the existing protective order to permit the plaintiffs' counsel to obtain: (i) from the defendants, the names, addresses, and telephone nun1bers, of persons with an acquired brain injury who are participating in the ABI Waiver, and oftheir guardians, if any, and the ISPs of such ABI Waiver participants; (ii) from the defendants, the names, addresses, and telephone numbers ofpersons with an acquired brain injury who are participating in the Transition Group and of their guardians, if any, and the names, addresses, and telephone numbers of persons with an acquired brain injury who have moved from the Transition Group into the Imminent Risk Group and of their guardians, if any; (iii) from the community providers and private healthcare facilities or organizations that serve persons with an acquired brain injury, the protected healthcare information, as defmed under the Health Insurance Portability & Accountability Act of 1996, of such persons. The fonn of the motion shall be as set forth in Attachment A to this Agreement. The defendants shall notify nursing facilities, rehabilitation hospitals, and cmmnunity providers that the Center for Public Representation and Wilmer Cutler Pickering Hale and Dorr LLP represent a class of persons with an acquired brain injury and that the United States District Court has entered a protective order (which shall be attached to the notification) with respect to that class. The form of the notification shall be as set fortl1 in Attachment B to this Agreement.
53. This Settlement Agreement is tl1e result of ann's-length negotiations. Since the plaintiffs and the defendants contributed substantially, materially and cooperatively in drafting this Agreement, it shall not be more strictly construed against one party than the otl1er.
21

Case 3:07-cv-30084-MAP Document 42-2 Filed 06/02/08 Page 23 of 23

For The Plaintiffs,

~~~~~---~~~---­ 'artZ, Esq.
Center for Public Representation 22 Green Street Northampton, MA 01 060
Date:~ ~~ z.oo'8 /
~~~

Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston. Massachusetts 02109
Date: -,/.1.7~ 3a1 'Zo&if

MPhu.- td~(<PJ,t.--'

Ms. Arlene Korab, Executive Director

Brain Injury Association of Massachusetts

30 Lyman Street, Suite 10

o-ko I Westborough, MA 01581

Date:

0 8"

For the Defendants,

Secretary Leslie A. Kirwan Executive Office for Administration and Finance
State House, Room 373
Boston. MA 02133
Date: 5/:&:Jjoi'

22

 </s> Case 3:07-cv-30084-MAP Document 99 Filed 06/27/14 Page 1 of 3 Case 3:07-cv-30084-MAP Document 97-1 Filed 06/23114 Page 1 of 3

UNITED STATES DISTRICT COURT 
 DISTRICT OF Mf\SSACHUSETTS 
 WESTERN DIVISION 


CATHERINE HUTCHINSON, £.\ al., Plaintiffs.
v
DEVAL L. PATRICK,£.\!!b. De rendams.

)

}

}

)

}

CA No. ()7-CV-3()()84-MAP

}

)

)

PROTECTIVE ORDER The Court, having approved a Revised Protective Order in this mailer on August 27. 2007. and a subsequent modification to that Revised Protective Order, on June 13.2008, and upon the joint motion orthe parties for modification of such prior orders in light of the Amended Settlement Agreement ('"Settlement Agreement") between the parties, the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191, 110 Stat. 1936) ("'H IPAN"), and other state and fedemllaws governing the disclosures of personal information. orders the following: I. For the purposes of this HI PAA-quali fied protective order ("'Protective Order""}. "protected health information" or "PHF' shall include not only PHI, as defined by HIPAA. for class members that is in the possession or community providers and private healthcare facilities or organizations that serve stich persons, but shall also include the following:
a. The names. addresses. and telephone numbers of class members as described in 1il2 of the Settlement Agreement. and their guardians. who have met with an MFP Transition Entity or case manager. as described in 'J13 of the Settlement Agreement;

Case 3:07-cv-30084-MAP Document 99 Filed 06/27/14 Page 2 of 3 Case 3:07-cv-30084-MAP Document 97-1 Filed 06123114 Page 2 013
b. The names, addresses. and telephone numbers of class members \\'ho are participating in either the MFP-Community Living Waiver or the ,vi FP-Residential Supports Waiver, their guardians. and their Individualized Service Plans. as described in
'13 7 of the Setllement Agreement: and
c. The names, addresses and telephone numbers of class members. and their guardians. residing in a facility I\'ho have applied for the Massachusetts Rehabilitation Commissions' Brain Injury and Statewide Special Specialized Community Services program, or \\'ho have affirmatively answered Minimum Data Set-Section Q, indicating thm they would like to speak with someone about options to live in the community, and as described in ~36 of the Selliement Agreemel1l. 2. The panics to the above-captioned maHer. and their attorncys. are authorized to receive PHI. as dciined above. to the extenL and subjc('l to. the conditions outlined herein. 3. The parties and their anorneys shall be pennirted to use PHI solely lor matters reasonably connected with the above-captioned litigation and the Settlement Agreement between the parties. This includes, but is not limited to. disclosure to the parties, their attorneys of record, the attorneys' finns (i.e" attorneys, support staff. and consultants). the parties' experts and consultants. coun reponers and copy services. 4. At the conclusion of this litigation including any subsequent appeals from this litigation, any person or entity in possession of PHI received pursuant to this Protective Order. including all copies made. must either return sllch PHI to the original disclosing party or destroy it.
2 


Case 3:07-cv-30084-MAP Document 99 Filed 06/27/14 Page 3 of 3 Case 3:07-cv-30084-MAP Document 97-1 Filed 06/23/14 Page 3 of 3

5. Nothing in this Protective Order shall prevent any third pany from raising an)'

objections available under federal or r.'iassachusells law with respect to requests lor PHI from the

panies (or their attorneys) pursuant to this Protective Order.

6. Defendants need not provide nOlice pursuant to section 2(k) of M.G.L. c. 66A

prior to disclosing the PH I of class members pursuant to the terms of the Settlement Agreement.

7. All provisions of the Revised Protective Order. entered in this matter on August

27,2007. and all provisions of the Protective Order. emcred on June 13,2008. that are not

ineonsistcm with the terms of this Protective Order shall remain in loree and effee!.

2-1 ,..-;:
Dated:JUw.

,2014

~~~'.:+ United StaR'S District Coun Ju ge

3 


 </s> Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 1 of 25

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

Catherine Hutchinson, et al. Plaintiffs,
v. Deval L. Patrick, et al.
Defendants.

)

)

)

)

)

Civil Action

)

No. 07-30084-MAP

)

)

)

)

)

)

AMENDED SETTLEMENT AGREEMENT

The Court entered an order approving the original Final Comprehensive

Settlement Agreement on September 18, 2008. This Amended Settlement Agreement is

intended to substitute for that original agreement. In order to resolve all claims in this

matter, the parties agree as follows:

I. Transition of Persons with Acquired Brain Injury in Nursing and LongTerm Rehabilitation Facilities to the Community

1. The defendants will use the Massachusetts Money Follows the Person

Demonstration Project (“MFP Demonstration”) and various waiver programs to provide

community residential and non-residential supports in an integrated setting to Massachusetts Medicaid-eligible persons with an acquired brain injury1 who are in

nursing and long-term rehabilitation facilities (“Class Members in Facilities”).

1 When used anywhere in this Amended Settlement Agreement, “acquired brain injury” or “ABI” refers to all forms of brain injuries that occur after age 22, including without limitation brain injuries caused by external force, which are often referred to as “traumatic brain injuries” or “TBI,” but not including Alzheimer’s Disease and similar neuro-degenerative diseases the primary manifestation of which is dementia.
1

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 2 of 25
2. Over the 6-year term of this Amended Settlement Agreement (“Agreement”), the defendants will provide up to 1174 waiver slots to Class Members in Facilities in the manner agreed to below in paragraphs 3-6. Waiver slots will include integrated home and community-based waiver services consistent with a waiver participant’s individual service plan.
3. In this Agreement “Year 1” shall mean the twelve-month period beginning July 1, 2013. “Year 2” shall mean the twelve-month period beginning July 1, 2014. “Year 3” shall mean the twelve-month period beginning July 1, 2015. “Year 4” shall mean the twelve-month period beginning July 1, 2016. “Year 5” shall mean the twelvemonth period beginning July 1, 2017. “Year 6” shall mean the twelve-month period beginning July 1, 2018.
4. In Year 1, the defendants will add 75 residential waiver slots for Class Members in Facilities. These slots will include residential and non-residential supports in an integrated setting provided through a residential waiver program. The defendants will convert unfilled capacity in the existing ABI non-residential waiver to the ABI residential waiver, in order to provide 40 of the 75 residential waiver slots to be added in Year 1. The defendants will also add 45 non-residential waiver slots, which will be available to eligible Class Members in Facilities. These slots will include non-residential supports provided through the MFP non-residential waiver program and other non-residential waiver programs.
5. In Year 2, the defendants will add 94 residential waiver slots for Class Members in Facilities. These slots will include residential and non-residential supports in an integrated setting provided through a residential waiver program. The defendants will
2

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 3 of 25
also add 56 non-residential waiver slots, which will be available to eligible Class Members in Facilities. These slots will include non-residential supports provided through the MFP non-residential waiver program and other non-residential waiver programs.
6. In Years 3-5, the number of additional residential and non-residential waiver slots to be added for Class Members in Facilities in each year will be determined based on the demand for either residential or non-residential waiver services, as calculated in ¶¶ 8-9.
7. In Year 6, the number of additional residential waiver slots to be added for Class Members in Facilities will be 111 and the number of additional non-residential waiver slots to be added for Class Members in Facilities will be 74.
8. If at least one Class Member in a Facility is denied waiver services in Years 2-4 due to a lack of capacity in the MFP and ABI waivers, then demand for waiver services to Class Members in Facilities will be deemed to have exceeded capacity in that year. The determination of whether demand exceeds capacity will be made separately for the residential and the non-residential waiver slots described in ¶¶ 5-6. When demand exceeds capacity in Year 2, 3, or 4 for either the residential or the non-residential waiver slots described in ¶¶ 5-6, the capacity for either or all of those waivers for the next year will be increased by 125% of the number of slots added in the prior year. If demand does not exceed capacity in Year 2, 3, or 4 for either the residential or non-residential waiver slots described in ¶¶ 5-6, the capacity for either or all of those waivers will increase by 100% of the number of slots added in the prior year.
9. The calculation of demand and determination of capacity to be added for Class Members in Facilities will be done annually in Years 2, 3, and 4 of this Agreement.
3

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 4 of 25
The calculation will be made based upon demand during the twelve-month period ending on September 30th . II. MFP and ABI Waiver Outreach
10. EOHHS will implement an expanded outreach effort to ensure that Class Members in Facilities are aware of new options available under the MFP Demonstration. This expanded outreach will utilize various entities assigned to defined service areas and contracted to proactively identify and enroll MFP Demonstration-eligible Class Members in Facilities who are interested in transitioning to the community and to inform nursing facility social workers about the services offered through the MFP Demonstration.
11. During Years 1-6, EOHHS will assign an MFP Transition Coordinator or a case manager from an appropriate EOHHS agency or contractor to meet with all Class Members in Facilities who: (1) were denied placement under the existing ABI waiver programs either for lack of an available waiver slot or by operation of the individual cost limit; (2) were referred to EOHHS by a nursing facility social worker; or (3) have applied to and been found to meet the criteria for the Massachusetts Rehabilitation Commission’s (“MRC’s”) Brain Injury Statewide Specialized Community Services (“BI&SSCS”) program.
12. During Years 2-5, EOHHS will ensure that an employee representative of an Aging and Disability Resource Center (“ADRC”) shall meet with individuals who have responded affirmatively to Section Q question 0500 of the Nursing Home Minimum Data Set (“MDS Section Q”) regarding their desire to leave the facility and receive services in the community. If the ADRC employee representative determines that the individual is a Class Member in a Facility, then the ADRC shall notify EOHHS. EOHHS
4

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 5 of 25
will assign an MFP Transition Coordinator or case manager from an appropriate EOHHS agency or contractor to meet with all such identified Class Members in Facilities. Nothing in this paragraph shall require that a clinical assessment be completed in order to determine whether any individual is a Class Member in a Facility.
13. During these outreach meetings with identified Class Members in Facilities, the MFP Transition Coordinator or a case manager from an appropriate EOHHS agency or contractor will: (1) provide information about the MFP Demonstration and community living options under the MFP Demonstration; (2) engage the individual (and guardian, if any) in a discussion about community living; (3) address concerns regarding the transition from nursing facilities to the community; (4) assist the individual in executing an MFP Informed Consent form and completing appropriate waiver applications if the individual is interested in enrolling in the Demonstration and applying for a waiver; and (5) offer to arrange visits to community living programs for persons who have signed an MFP Informed Consent form if the individual (or their guardian, if any) expresses concerns about or a lack of familiarity with community living programs and a willingness to visit a community program.
14. If despite the above efforts, one or more of the residential or nonresidential waiver slots addressed in this Agreement remains unfilled at the end of Year 3 or at the end of any subsequent year of this Agreement, then the defendants will:
a. fund family-to-family programs to meet with Class Members in Facilities (and their guardians, if any) who are agreeable to such a meeting and who have not yet signed an MFP Informed Consent form due to concerns about transitioning to the community;
5

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 6 of 25
b. assign an MFP Transition Coordinator or case manager from an appropriate EOHHS agency or contractor to meet with up to 100 Class Members in Facilities with traumatic brain injury who have not responded “yes” to MDS Section Q and who have neither applied for MRC’s BI&SSCS program nor met with an MFP Transition Coordinator as described in Paragraph 13, consistent with federal requirements. III. ABI Residential Habilitation Waiver 15. The defendants will expand the covered services in the ABI Residential Habilitation waiver to include shared and assisted living services, as defined in the MFP waivers. 16. EOHHS will issue the following statement to all residential habilitation waiver service providers on or before July 1, 2013 or within thirty days after the final approval of this Agreement, whichever is later: “This is to notify you that you are obligated to deliver services and supports, including assistance with activities of daily living, through your residential and/or program staff, and facilitate access to ancillary services such as State Plan Personal Care Attendant services, consistent with the waiver service definition for residential habilitation and applicable regulations and residential provider policies, as incorporated in your contract with EOHHS.” IV. Waiver Administration A. Application and Enrollment 17. The defendants will use a continuous enrollment process for the ABI residential waiver and for the MFP community living and residential waivers.
6

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 7 of 25
B. Transition Time Periods 18. Starting in Year 2, each Class Member in a Facility will transition to the community within 12 months of his or her enrollment in a waiver, absent reasonable exceptions. C. Residential Provider Network Capacity 19. EOHHS will make best efforts to increase residential provider network capacity for the ABI and MFP waivers. As part of this effort, EOHHS will work with the Department of Developmental Services to outreach to providers of residential habilitation services to address participant choice, reasonable geographic coverage, and the increase in waiver slots. D. Program Administration 20. EOHHS will ensure that written rules, regulations, and policies concerning client rights, investigation, incident management, mortality review, provider oversight, and the provider network for the MFP and ABI waiver programs that are substantially similar to the written rules, regulations, and policies of the Department of Developmental Services, are adopted and implemented, to the extent such rules, regulations, and policies are appropriate and applicable to persons with ABI. The plaintiffs will have an opportunity to comment on any new rules, regulations, and policies related to this section before they are finalized. V. Acquired Brain Injury Waiver Program 21. On January 30, 2013, the defendants submitted a proposal to the Centers for Medicare and Medicaid Services (“CMS”), pursuant to Section 1915(c) of the Social
7

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 8 of 25
Security Act, for renewal of waiver programs to serve persons with an acquired brain injury (hereafter, the “ABI Waivers”).
22. The community services provided in the ABI Waivers will include all of the community residential and nonresidential services as approved in the existing ABI Waivers, with the exception of the Community-Based Substance Abuse Treatment service, which has previously been identified by CMS as not having a home- and community-based character. In addition, the following services were requested in the renewal application for the ABI-Residential Habilitation waiver: Shared Living 24-hour Supports, and Assisted Living Services.
23. Services under the ABI Waivers will be provided pursuant to an Individualized Service Plan (“ISP”) that is based upon person-centered principles and is developed along with the Waiver participant. ABI Waiver participants will be provided an ISP, annual updates of the ISP, and the services set forth in their ISP.
24. In the ABI Waiver renewal applications, the defendants described (a) policies and procedures for the administration of the ISP planning process; and (b) an administrative fair hearing process as described in 42 C.F.R. 431.200, et seq., Subpart E, for disputing the following actions by an agency designated by EOHHS: (1) a determination denying participation in an ABI Waiver; or (2) denials, suspensions, reductions, and terminations of the service requirements of an ISP, including a substantial failure to implement the service requirements of the ISP within the terms and conditions of the ABI Waivers as approved by CMS. The plaintiffs through their counsel will have an opportunity to review and comment on new policies and procedures related to this section before they are finalized.
8

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 9 of 25
25. The ISP will be developed by an interdisciplinary team that is coordinated by the service coordinator and that includes the individual, his/her guardian if any, relevant providers, and representatives of the agency responsible for operating an ABI Waiver.
26. The ISP planning process will determine: (1) what ABI Waiver community services and supports are needed to allow the person to live safely in the community; and (2) what ABI Waiver transition services are needed by the person residing in the nursing facility or rehabilitation hospital, for up to sixty days prior to discharge into the community, to facilitate the person’s safe transition to the community.
27. In order to comply with federal cost neutrality requirements for Section 1915(c) waivers, and pursuant to 42 CFR 441.301(a)(3), the defendants may refuse entrance to the ABI Residential Habilitation Waiver to any person with an acquired brain injury when the defendants reasonably expect that the annual Medicaid costs of care furnished to that person with an acquired brain injury, including residential habilitation and other ABI Waiver services plus Title XIX state plan services, will exceed $194,486. The defendants may refuse entrance to the ABI Non-Residential Habilitation Waiver to any person with an acquired brain injury when the defendants reasonably expect that the annual Medicaid costs of care furnished to that person with an acquired brain injury, including ABI Waiver services other than residential habilitation and Title XIX state plan services, will exceed $99,890. These cost limits shall be specified in Appendix B-2 of the ABI Waiver renewals submitted to CMS for its approval, and shall be updated annually to reflect current rates of payment.
9

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28. Persons with an acquired brain injury who are participating in an ABI Waiver will be offered the choice to receive services in the most integrated setting appropriate to their needs such as their own homes or apartments, shared living arrangements such as group homes, or with their families and consistent with the ABI Waivers as approved by CMS. This provision does not create an obligation to purchase a house, apartment, or other dwelling for a class member enrolled in an ABI Waiver, and is subject to the net state cost limit in ¶ 29 and all other terms of the ABI Waivers.
29. The net state cost for ABI Waiver services and for all other Medicaid and state-funded services for participants in the ABI Waiver programs shall not exceed $18.75 million over three years from the date of CMS approval of the ABI Waiver renewals. In order to ensure that the net state cost does not exceed this limit, the defendants will estimate the total annual state cost for each ABI Waiver participant at the time of enrollment and will reevaluate, twice a year, the projected total cumulative state cost for each ABI Waiver participant.2 In the event that the net state cost is projected to exceed the $18.75 million net state cost limit, the defendants may initiate corrective action to bring the ABI Waivers into alignment with this limit. Corrective actions may include, but shall not be limited to, the submission of amendments to the approved ABI Waivers, a freeze on new ABI Waiver enrollments, a reduction in the number of prospective ABI Waiver participants, changes in the ABI Waiver service specifications,
2 The $18.75 million net state cost cap refers to the net cost, counting federal financial participation (“FFP”), of ABI Waiver services and of all other Medicaid and state-funded services and supports for participants in the ABI Waiver programs combined, including administrative and case management costs, compared to the net cost, counting FFP, of all Medicaid and state-funded services and supports for those participants if they were not enrolled in the ABI Waiver programs. This calculation shall include historically based growth rate projections and actual costs to date for each service included in the calculation.
10

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 11 of 25
limitations on the amount of ABI Waiver services or changes in the individual cost limits described in ¶ 27.
30. Appendix B of the ABI Waiver renewals will provide that all class members in nursing facilities or rehabilitation hospitals can apply for the ABI Waivers. Appendix B of each renewal will specify:
a. the number of participants that the defendants expect to serve during each year that the ABI Waiver is in effect;
b. applicable federal and state Medicaid requirements; c. other applicable eligibility requirements, including: (i) the requirement that the prospective participant can be safely served in the community within the terms of the ABI Waiver and the cost limits described in ¶¶ 27 and 29 above, and consistent with CMS requirements for a Home- and Community-Based Service (“HCBS”) waiver; and (ii) any requirement with respect to nursing facility length of stay as a prerequisite to ABI Waiver participation; and d. procedures for the evaluation and reevaluation of level of care. Appendix B will also describe an orderly, rational, and fair process for the consideration of applications for enrollment in the ABI Waiver and for the allocation of openings in the ABI Waiver. 31. The defendants will maintain policies and procedures for administration of the ABI Waivers concerning the following: (1) waiver application; (2) eligibility criteria; (3) appeals, including as stated in ¶ 24, above; (4) needs assessment; (5) service provision; and (6) establishing a process for quality management that incorporates each
11

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of the elements and sub-elements of CMS’s HCBS Quality Framework, as described in CMS’s August 29, 2002 letter to State Medicaid Directors, or any subsequent revisions thereto, and each of the six assurance areas and relevant sub-assurance areas as required for 1915(c) waivers by CMS. The plaintiffs through their counsel will have an opportunity to review and comment on new policies and procedures related to this section before they are finalized.
32. The defendants will provide case management for all persons enrolled in the ABI Waivers.
33. A senior staff person within EOHHS will oversee and assist in the implementation of the ABI Waivers. Agencies designated by EOHHS shall be responsible for operating the ABI Waivers and for ensuring that ABI Waiver requirements of this Agreement are implemented. VI. MFP Demonstration Project
34. The defendants will develop and implement policies and procedures for administration of the MFP Demonstration and MFP waivers concerning the following: (1) enrollment process for the MFP Demonstration and application process for the MFP waivers; (2) eligibility criteria and determinations; (3) appeals of denials, suspensions, reductions, and terminations of services through a fair hearing process; (4) needs assessment and care plan development consistent with person-centered planning principles; (5) service provision; and (6) establishment of a process for quality management that is consistent with each of the elements and sub-elements of CMS’s HCBS Quality Framework, as described in CMS’s August 29, 2002 letter to State Medicaid Directors, or any subsequent revisions thereto, and the six assurance areas and
12

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relevant sub-assurance areas as required for 1915(c) waivers by CMS. The defendants will ensure that those staff responsible for assessing the needs of and developing a care plan for a person with an acquired brain injury who is enrolled in the MFP Demonstration will have the appropriate knowledge and understanding of the needs of persons with an acquired brain injury. The plaintiffs through their counsel will have an opportunity to review and comment on new policies and procedures related to this section before they are finalized.
35. A senior staff person within EOHHS will oversee the implementation of the MFP Demonstration and the MFP waivers. The Commonwealth shall designate an agency or agencies to be responsible for operating the MFP Demonstration and for ensuring that the MFP Demonstration Project and MFP waivers requirements of this Agreement are implemented. VII. Data Collection and Reporting
36. The defendants will provide the following quarterly data for Class Members in Facilities:
a. the number of persons who have enrolled in the MFP Demonstration, applied for the MFP waivers, and applied for the ABI residential and nonresidential waivers, as well as the length of time for applications for the MFP and ABI waivers to be processed;
b. the identification of all Class Members in Facilities who have met with MFP Transition Coordinators or case managers described in ¶ 13 and a report on whether or not the person has enrolled in the MFP Demonstration;
13

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c. the number of eligibility determinations for the MFP and ABI waivers, and the reason for waiver denials;
d. the transition time for each Class Member in a Facility enrolled in any waiver, and an explanation for any case exceeding 12 months; and
e. the names, addresses and guardians (if any) of each Class Member in a Facility who has applied for MRC’s BI&SSCS program or affirmatively answered MDS Section Q, provided such group can be identified, provided that authorization to share CMS data is received, and consistent with ¶ 52 of the original Final Comprehensive Settlement Agreement. 37. To the extent authorized by protective orders in this case, the defendants shall provide the plaintiffs’ counsel with (a) the names, addresses, and telephone numbers, of persons with an acquired brain injury who are participating in an ABI Waiver, and of their guardians, if any, and the ISPs of such ABI Waiver participants; and (b) the names, addresses, and telephone numbers of persons with an acquired brain injury who are participating in the MFP waiver, and of their guardians, if any, and the ISPs of such MFP waiver participants. This provision does not create a continuing obligation to provide the above information after the individual is living in the community. VIII. Nursing Facility Admission and Services 38. The defendants will not pay for the stay of a person with an acquired brain injury in a nursing facility unless the requirements in duly promulgated regulations set forth at 130 CMR 456.407 and 130 CMR 456.408 are met. The defendants will assist nursing facilities, long-term care options counseling entities and other community-based
14

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 15 of 25
organizations in making available to individuals in nursing facilities or planning to enter nursing facilities, information about community service options.
39. For persons with an acquired brain injury in nursing facilities who are preparing to transition to the community through participation in an ABI Waiver and/or the MFP Demonstration, the defendants will make payments to therapists in accordance with duly promulgated regulations set forth at 130 CMR 432 and 130 CMR 450 for ongoing therapy services. Any appeal of the denial, suspension, reduction or termination of payment for therapy services will be pursuant to the fair hearing process described in 42 C.F.R. § 431.200 et seq.
40. The ABI Waiver service coordinator and the MFP Transition Coordinator or case manager from an appropriate EOHHS agency or contractor shall make best efforts to communicate with licensed clinicians in the nursing facility who are responsible for the care of an ABI Waiver participant in a nursing facility, or a MFP waiver participant in a nursing facility, so that the transitional service component of the transition planning process is coordinated with the participant’s medical care, including necessary therapies. IX. Funding
41. The defendants’ obligations under this Agreement are subject to appropriations by the Legislature and the availability of FFP for the ABI Waivers, State Plan services, and the MFP Demonstration. In order to implement this Agreement, which resolves the federal statutory claims set forth in the Amended Complaint, the defendants will submit budget requests as needed and will, consistent with Art. 63 of the Massachusetts
15

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 16 of 25
Constitution, make their best efforts to obtain the funding necessary to implement this Agreement. X. Court Approval and Enforcement
42. This Agreement represents a full and fair resolution of the claims for relief alleged in the Amended Complaint.
43. In preparation for a fairness hearing pursuant to Fed. R. Civ. P. 23(e), the parties will jointly file a motion for preliminary approval of this Agreement together with a notice of settlement that describes the process for filing written objections and includes the date for the fairness hearing. The parties will cooperate in presenting this Agreement to the Court at the fairness hearing.
44. This Agreement shall be subject to the approval of the Court. If the Agreement is so approved, the original Final Comprehensive Settlement Agreement shall be vacated. This Agreement may be enforced only as set forth in ¶¶ 46 through 50 below.
45. If the Court does not approve this Agreement in all respects, this Agreement shall be null and void and of no force and effect, and nothing herein shall be deemed to prejudice the position of any of the parties with respect to the litigation or otherwise, and neither the existence of this Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be admissible in evidence, referred to for any purpose in the litigation or in any other litigation or proceeding, or construed as an admission, presumption or concession by defendants of any liability or the truth of any of the allegations in this litigation.
46. The Court shall retain jurisdiction to hear and adjudicate noncompliance
16

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 17 of 25
motions filed in accordance with ¶¶ 49 through 50, below. 47. No less than thirty days prior to filing any noncompliance motion, the
plaintiffs shall notify the defendants of any alleged noncompliance with this Agreement and request a meeting for the purpose of attempting to resolve the problems identified by the plaintiffs regarding the defendants’ alleged noncompliance.
48. Should the parties fail to resolve the problems identified by the plaintiffs, the parties shall engage in mediation with a mutually acceptable mediator.
49. Should the parties fail to resolve, through mediation, any problems identified by the plaintiffs, the plaintiffs may file a motion with the Court seeking a judicial determination that the defendants are not substantially complying with this Agreement. The defendants shall have no less than thirty days to respond to any such motion. If the Court finds that the defendants have not substantially complied with this Agreement, it may enter an order consistent with equitable principles, but not an order of contempt, that is designed to achieve compliance.
50. If the plaintiffs contend that the defendants have not complied with an order entered under the preceding paragraph, they may, after reasonable notice to defendants, move for further relief from the Court to obtain compliance with the Court’s prior order. In ruling on such a motion, the Court may apply equitable principles and may use any appropriate equitable or remedial power then available to it.
51. The Court shall dismiss this action with prejudice upon the completion of Year 6 provided that the defendants have performed their obligations under this Agreement and at that time are in substantial compliance with all obligations under this Agreement. The defendants will provide the plaintiffs with at least sixty days’ notice of
17

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 18 of 25
their intent to seek dismissal. If the parties agree that the defendants are entitled to dismissal, the parties will execute and file with the Court a joint motion for dismissal with prejudice of all claims for relief arising out of the Complaint. If the parties do not agree, the defendants may independently move for entry of such a dismissal. The plaintiffs shall have up to sixty days to oppose such a motion. XIII. Miscellaneous
52. Nothing in this Agreement shall require EOHHS to purchase a house, apartment, or other dwelling, or to create Assisted Living residences for Class Members in Facilities.
53. Nothing in this Agreement shall require EOHHS to place Class Members in Facilities in waivers for which they are not eligible.
54. Nothing in this Agreement shall require EOHHS to reserve or designate waiver slots in the MFP residential or non-residential waiver programs for Class Members in Facilities. EOHHS will administer the waiver programs in a manner designed to serve persons who are ineligible for the ABI waivers in the MFP waiver programs to the extent they are eligible for MFP waivers.
55. The parties shall meet quarterly to discuss any issues relevant to implementation of this Agreement.
56. Either party may move to vacate the Settlement Agreement and the plaintiffs may proceed with litigating the case in any of the following circumstances:
a. CMS does not approve the ABI Waivers, the MFP waivers, the MFP Demonstration or renewals of such, or approves any of these programs in a
18

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 19 of 25
manner that impedes or precludes compliance with the provisions of this Agreement;
b. the Legislature does not appropriate and the defendants do not obtain from other sources necessary funding to perform their obligations under this Agreement. 57. By mutual agreement, the parties may change the terms of this Agreement, including, but not limited to, the timetables for taking specific actions, provided that such mutual agreement is memorialized in writing, signed by the parties and approved by the Court. 58. The headings of the sections of this Agreement are for convenience only and will not affect the construction hereof. 59. This Agreement constitutes the entire agreement of the parties, and supersedes all prior agreements, representations, negotiations, and undertakings not set forth or incorporated herein, including the original Final Comprehensive Settlement Agreement. 60. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations or proceedings connected with it, shall be construed against either party as an admission, presumption, concession or finding of liability or wrongdoing. 61. This Agreement is the result of arm’s-length negotiations. Since the plaintiffs and the defendants contributed substantially, materially and cooperatively in drafting this Agreement, it shall not be more strictly construed against one party than the other.
19

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Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 21 of 25

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 22 of 25

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 23 of 25
For the Plaintiffs,
________________________________ Steven J. Schwartz, Esq. Kathryn Rucker, Esq. Center for Public Representation 22 Green Street Northampton, MA 01060 Date:
________________________________ Richard A. Johnston, Esq. Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Date:
__________________________ Michael R. Dube Choate Hall and Stuart LLP 2 International Place Boston, MA 02110 Date:
________________________________ Ms. Arlene Korab, Executive Director Brain Injury Association of Massachusetts 30 Lyman Street, Suite 10 Westborough, MA 01581 Date: June 19th, 2013
For the Defendants,
_____________________ Secretary Glen Shor Executive Office for Administration and Finance State House, Room 373 Boston, MA 02133 Date:
20

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 24 of 25
For the Plaintiffs,
Steven J. Schwartz, Esq. Kathryn Rucker, Esq. Center for Public Representation 22 Green Street Northampton, MA 01060 Date:
Richard A. Johnston, Esq. Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Date:
Ms. Arlene Korab, Executive Director Brain Injury Association of Massachusetts 30 Lyman Street, Suite 10 Westborough, MA 01581 Date:
/Fo the Defendants,
/i ..--..\..._
/ Secretary Glen Shor Executive Office for Administration and Finance State House, Room 373
0-77(3 Boston, MA 02133
Date:
Secretary John Polanowicz Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 Date:
20

Case 3:07-cv-30084-MAP Document 84-1 Filed 06/19/13 Page 25 of 25
For the Plaintiffs,
Steven J. Schwartz, Esq. Kathryn Rucker, Esq. Center for Public Representation 22 Green Street Northampton, MA 01060 Date:
Richard A. Johnston, Esq. Wilmer Cutler Pickering Hale and Don - LLP 60 State Street Boston, Massachusetts 02109 Date:
Ms. Arlene Korab, Executive Director Brain Injury Association of Massachusetts 30 Lyman Street, Suite 10 Westborough, MA 01581 Date:
For the Defendants,
Secretary Glen Shor Executive Office for Administration and Finance State House, Room 373 Boston, MA 02133 Date:
S tary John P a owicz Exeicutive Offiof Health and Human Services (SYhte Ashburton ace Boston, MA 02108
Date: 6//e/eo13
20

 </s> Case 3:07-cv-30084-MAP Document 91 Filed 07/11/13 Page 1 of 2
Case 3:07-cv-30084-MAP Document 88-3 Filed 07/09/13 Page 2 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Western Division

)

Catherine Hutchinson, et al.,

)

)

Plaintiffs, )

)

v.

)

)

Deval L. Patrick, et al.,

)

)

Defendants. )

)

Civil Action No. 07-30084-MAP

U!!g~~ l~ER APPROVING
AMENDEDSETTLEMENTAGREEMENT

On June 20,2013, this court preliminarily approved the Amended Agreement and approved proposed Notice to the Class. No objections have been submitted by any class member or guardian. After reviewing the parties' memoranda and affidavits, and pursuant to a Fairness Hearing held on July 11, 2013, the court finds that the Amended Agreement is fair, reasonable and adequate.

Therefore, the court approves the Amended Agreement, noting that the parties agree that this agreement does not constitute a consent decree, and that the court will retain jurisdiction over the case. The court orders that this case not be closed and that judgment not enter pending compliance with the terms of the Amended Agreement.

Case 3:07-cv-30084-MAP Document 91 Filed 07/11/13 Page 2 of 2
Case 3:07-cv-30084-MAP Document 88-3 Filed 07/09/13 Page 3 of 3

IT IS SO ORDERED.

~t~~LaY~

7j t ,5 Michael A. Ponsor
Senior United States District Judge

~1 ~~

 </s> Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 1 of 17
United States District Court District of Massachusetts (Springfield) CIVIL DOCKET FOR CASE #: 3:07−cv−30084−MAP

CLOSED

Hutchinson et al v. Patrick et al Assigned to: Judge Michael A. Ponsor Case in other court: First Circuit, 10−01268 Cause: 42:1218(2) Americans with Disabilities Act
Plaintiff

Date Filed: 05/17/2007 Date Terminated: 09/24/2010 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Catherine Hutchinson by her guardian Sandy Julien

represented by Anne M. McLaughlin Attorney General's Office 18th Floor One Ashburton Place Boston, MA 02108 617−727−2200 Email: anne.m.mclaughlin@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker Center for Public Representation 22 Green Street

Northampton, MA 01060 4135866024 Fax: 617/928−0971 Email: krucker@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Dube Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−4077 Email: mdube@choate.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miranda Hooker Pepper Hamilton LLP 125 High Street 19th Floor, High Street Tower Boston, MA 02110 617−204−5160 Email: hookerm@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Johnston Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6282 Fax: 617−526−5000 Email: richard.johnston@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 2 of 17

Plaintiff Raymond Puchalski by his guardian Nickie Chandler
Plaintiff Glen Jones by his guardian Steven Jones

Steven J. Schwartz Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: sschwartz@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel W. Halston Wilmer Hale LLP 60 State Street Boston, MA 02109 617−526−6654 Fax: 617−526−5000 Email: daniel.halston@wilmerhale.com ATTORNEY TO BE NOTICED
James W. Prendergast Wilmer Hale LLP 60 State Street Boston, MA 02109 6177214092 Email: jimprenderg@gmail.com TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
represented by Anne M. McLaughlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael R Dube (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miranda Hooker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard A. Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne M. McLaughlin (See above for address) LEAD ATTORNEY

Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 3 of 17

ATTORNEY TO BE NOTICED

Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Dube (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miranda Hooker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Nathaniel Wilson on behalf of themselves and all others similarly situated

represented by Anne M. McLaughlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Dube (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miranda Hooker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
The Brain Injury Association of Massachusetts

represented by Anne M. McLaughlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 4 of 17

Kathryn L. Rucker Center for Public Representation 22 Green Street

Northampton, MA 01060 413−586−6024 Fax: 617/928−0971 Email: krucker@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Dube (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miranda Hooker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jason Cate by his next friend and father, Addison Cate

represented by Anne M. McLaughlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn L. Rucker Center for Public Representation 22 Green Street

Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: krucker@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Dube (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miranda Hooker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard A. Johnston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz

Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 5 of 17

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
The Stavros Center for Independent Living

represented by Kathryn L. Rucker Center for Public Representation 246 Walnut Street Suite 202 Newton, MA 02460 617/965−0776 Fax: 617/928−0971 Email: krucker@cpr−ma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Dube (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miranda Hooker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Deval L. Patrick Governor

represented by Jane L. Willoughby Attorney General's Office One Ashburton Place Room 2019 Boston, MA 02108 617−727−2200 Fax: 617−727−5785 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Stephan Office of the Attorney General One Ashburton Place Boston, MA 02108 617−727−2200 Email: john.stephan@state.ma.us TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Cartee Office of the Attorney General One Ashburton Place 18th Floor Boston, MA 02108 617−727−2200 x 2045 Fax: 617−727−5785 ATTORNEY TO BE NOTICED

Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 6 of 17

Jennifer G. Miller Massachusetts Attorney General's Office One Ashburton Place 20th Floor Boston, MA 02108 617−727−2200 ext. 2178 Fax: 617−727−5785 Email: Jennifer.Miller@state.ma.us ATTORNEY TO BE NOTICED

Defendant
Judy Ann Bigby Secretary of the Executive Office of Health and Human Services

represented by Jane L. Willoughby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Cartee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Michael Stephan (See above for address) TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer G. Miller (See above for address) ATTORNEY TO BE NOTICED

Defendant
Leslie Kirwan Secretary of the Executive Office of Administration and Finance

represented by Jane L. Willoughby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Cartee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Michael Stephan (See above for address) TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer G. Miller (See above for address) ATTORNEY TO BE NOTICED

Defendant
Thomas Dehner Actubg Director of Mass Health

represented by Jane L. Willoughby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Cartee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 7 of 17

John Michael Stephan (See above for address) TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer G. Miller (See above for address) ATTORNEY TO BE NOTICED

Defendant
Elmer C. Bartels Commissioner of Massachusetts Rehabilitation Commission

represented by Jane L. Willoughby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Cartee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Michael Stephan (See above for address) TERMINATED: 04/03/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer G. Miller (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/17/2007
05/17/2007 05/17/2007 05/17/2007
06/04/2007
06/04/2007 06/08/2007 06/08/2007 06/08/2007
06/15/2007

# Docket Text
1 COMPLAINT against Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels by Nathaniel Wilson, Catherine Hutchinson, Raymond Puchalski, Glen Jones filed. Magistrate Judge Consent Form to counsel. (Attachments: # 1 Part 2# 2 Cover and category sheets)(Finn, Mary) (Entered: 05/17/2007)
Case Assigned to Judge Kenneth P. Neiman. (Finn, Mary) (Entered: 05/17/2007)
Remark − Defts. to be served by waiver of service of summons. (Finn, Mary) (Entered: 05/17/2007)
Filing fee in the amount of $350.00 paid for 1 Complaint. Receipt number 306564. (Finn, Mary) Modified on 5/18/2007 to correct the spelling of the word "receipt". (Finn, Mary). (Entered: 05/17/2007)
2 Not all parties consented to assignment of case to Magistrate Judge Neiman. Case to be reassigned to Judge Michael A. Ponsor. (Document not scanned and placed in the vault) (Finn, Mary) (Entered: 06/04/2007)
Case Reassigned to Judge Michael A Ponsor. Judge Kenneth P. Neiman no longer assigned to the case. (Finn, Mary) (Entered: 06/04/2007)
3 NOTICE of Appearance by Jane L. Willoughby on behalf of Deval L. Patrick (Willoughby, Jane) (Entered: 06/08/2007)
4 First MOTION to Transfer Case by Deval L. Patrick.(Willoughby, Jane) (Entered: 06/08/2007)
5 First MEMORANDUM in Support re 4 First MOTION to Transfer Case filed by Deval L. Patrick. (Attachments: # 1 Exhibit 2006 Annual Report# 2 Exhibit Opinion)(Willoughby, Jane) (Entered: 06/08/2007)
6 NOTICE of Appearance by Jennifer Cartee on behalf of Deval L. Patrick (Cartee, Jennifer) (Entered: 06/15/2007)

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06/18/2007 06/20/2007
06/22/2007 06/22/2007 06/25/2007 06/29/2007 06/29/2007
07/02/2007 07/02/2007 07/03/2007 07/11/2007 07/11/2007 07/13/2007 07/13/2007

7 AMENDED COMPLAINT against all defendants, filed by Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Glen Jones. (Attachments: # 1 Amended Complaint, part 2)(Schwartz, Steven) (Entered: 06/18/2007)
8 WAIVER OF SERVICE Returned Executed Nathaniel Wilson waiver sent on 5/17/2007, answer due 7/16/2007; Catherine Hutchinson waiver sent on 5/17/2007, answer due 7/16/2007; The Brain Injury Association of Massachusetts waiver sent on 5/17/2007, answer due 7/16/2007; Raymond Puchalski waiver sent on 5/17/2007, answer due 7/16/2007; Jason Cate waiver sent on 5/17/2007, answer due 7/16/2007; Glen Jones waiver sent on 5/17/2007, answer due 7/16/2007. (Schwartz, Steven) (Entered: 06/20/2007)
9 MEMORANDUM in Opposition re 4 First MOTION to Transfer Case filed by Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Dube, Michael) (Entered: 06/22/2007)
10 AFFIDAVIT of Nickie Chandler in Opposition re 4 First MOTION to Transfer Case filed by Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Dube, Michael) (Entered: 06/22/2007)
Judge Michael A Ponsor : ENDORSED ORDER entered denying 4 Motion to Transfer Case. DENIED. Local Rule 40.1(D)(1)(b) places this case in the Western Division. The clerk refer the case to Chief Magistrate Judge Neiman for a Pre−Trial Scheduling Conference. So ordered. cc/cl (Lindsay, Maurice) (Entered: 06/25/2007)
11 Motion for Scheduling Order filed by Plaintiffs. (Attachments: # 1 Exhibit Proposed Scheduling Order)(Dube, Michael) Modified on 7/2/2007 (Healy, Bethaney). (Entered: 06/29/2007)
12 BRIEF by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones to 11 Recommendations for Scheduling Order Mem. in Support of Motion for Scheduling Order. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5)(Dube, Michael) (Entered: 06/29/2007)
Notice of correction to docket made by Court staff. 11 Motion for Scheduling Order corrected: document type was edited to correctly identify it as a motion. (Healy, Bethaney) (Entered: 07/02/2007)
District Judge Michael A Ponsor. ELECTRONIC ORDER REFERRING CASE to Magistrate Judge Kenneth P. Neiman Referred for: full pretrial management, excluding dispositive motions.(Healy, Bethaney) (Entered: 07/02/2007)
13 Letter/request (non−motion) from Jane L. Willoughby. (Lindsay, Maurice) (Entered: 07/03/2007)
14 MOTION for Protective Order by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Schwartz, Steven) (Entered: 07/11/2007)
15 MEMORANDUM in Support re 14 MOTION for Protective Order filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Schwartz, Steven) (Entered: 07/11/2007)
16 MOTION to Certify Class by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones.(Schwartz, Steven) (Entered: 07/13/2007)
17 MEMORANDUM in Support re 16 MOTION to Certify Class filed by The Stavros Center for Independent Living, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Attachments: # 1 Exhibit 1 ADA Class Certification Cases# 2 Exhibit 2 Institutional Placement

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07/13/2007 07/16/2007 07/17/2007 07/17/2007 07/25/2007 07/27/2007 07/27/2007
08/01/2007 08/08/2007 08/13/2007 08/15/2007
08/17/2007

Cases)(Schwartz, Steven) (Entered: 07/13/2007)
18 MEMORANDUM in Opposition re 11 MOTION for Order filed by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels. (Attachments: # 1 Text of Proposed Order Defendants' Proposed Scheduling Order)(Willoughby, Jane) (Entered: 07/13/2007)
19 ANSWER to Amended Complaint by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels.(Willoughby, Jane) (Entered: 07/16/2007)
Magistrate Judge Kenneth P. Neiman ELECTRONICORDER granting in part 11 Motion for Scheduling Order, ENTERED, cc:cl. See Order entered this day. (Healy, Bethaney) (Entered: 07/17/2007)
20 Magistrate Judge Kenneth P. Neiman. SCHEDULING ORDER setting Case Management Conference set for 11/6/2009 at 2:00 PM in Courtroom 3 before Magistrate Judge Kenneth P. Neiman ENTERED, cc:cl. SEE ORDER FOR ADDITIONAL DEADLINES. (Healy, Bethaney) (Entered: 07/19/2007)
21 Opposition re 14 MOTION for Protective Order filed by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels. (Attachments: # 1 Exhibit Affirmation of Deirdre Roney 7.19.2002# 2 Exhibit DRAFT Protective Order)(Cartee, Jennifer) (Entered: 07/25/2007)
22 Assented to MOTION for Leave to File Reply by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones.(Schwartz, Steven) (Entered: 07/27/2007)
Magistrate Judge Kenneth P. Neiman. ELECTRONIC ORDER granting 22 Motion for Leave to File ENTERED, cc:cl; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Healy, Bethaney) (Entered: 07/27/2007)
23 REPLY to Response to Motion re 22 Assented to MOTION for Leave to File Reply, 14 MOTION for Protective Order filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Schwartz, Steven) (Entered: 08/01/2007)
ELECTRONIC NOTICE of Hearing on Motion 14 MOTION for Protective Order ISSUED, cc:cl. Motion Hearing set for 8/15/2007 at 2:00 PM in Courtroom 3 before Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 08/08/2007)
24 MOTION to Stay Discovery Pending the Court's Ruling on Plaintiffs' Motion for Class Certification by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Willoughby, Jane) (Entered: 08/13/2007)
Electronic Clerk's Notes for proceedings held before Magistrate Judge Kenneth P. Neiman. Counsel (Attys Rucker, Schwartz, Dube, Johnston, Willoughby, Cartee, Miller) appear for Motion Hearing held on 8/15/2007 re 24 MOTION to Stay Discovery Pending the Court's Ruling on Plaintiffs' Motion for Class Certification filed by Leslie Kirwan, Judy Ann Bigby, Deval L. Patrick, Thomas Dehner, Elmer C. Bartels, 14 MOTION for Protective Order filed by Nathaniel Wilson, Glen Jones, Raymond Puchalski, The Brain Injury Association of Massachusetts, The Stavros Center for Independent Living, Jason Cate, Catherine Hutchinson. Arguments heard. Order to issue. (Court Reporter FTR (2:00 p.m.).) (Healy, Bethaney) (Entered: 08/16/2007)
25 Magistrate Judge Kenneth P. Neiman. MEMORANDUM AND ORDER with regard to Defendant's 24 Motion for Protective Order Staying Discovery and 14 Motion for Protective Order, ENTERED, cc:cl. See Order for details. (Healy, Bethaney) (Entered: 08/17/2007)

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08/17/2007 08/20/2007 08/20/2007 08/20/2007 08/20/2007 08/24/2007 08/24/2007
08/27/2007 08/27/2007 08/27/2007 08/27/2007 09/07/2007 09/24/2007
09/26/2007 09/26/2007 10/01/2007

26 Magistrate Judge Kenneth P. Neiman. PROTECTIVE ORDER ENTERED, cc:cl. (Attachments: # 1 Exhibit A)(Healy, Bethaney) (Entered: 08/17/2007)
27 CERTIFICATE OF CONSULTATION re 20 Scheduling Order, Set Scheduling Order Deadlines Local Rule 16.1(D). (Schwartz, Steven) (Entered: 08/20/2007)
28 CERTIFICATE OF CONSULTATION re 20 Scheduling Order, Set Scheduling Order Deadlines Local Rule 16.1(D). (Schwartz, Steven) (Entered: 08/20/2007)
29 CERTIFICATE OF CONSULTATION Pursuant to July 17, 2007, Scheduling Order. (Willoughby, Jane) (Entered: 08/20/2007)
30 Joint MOTION Endorsement of Stipulation by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels. (Attachments: # 1 Exhibit Stipulation)(Willoughby, Jane) (Entered: 08/20/2007)
31 MOTION for Clarification of August 17, 2007, Protective Order (Unopposed Motion) by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels.(Willoughby, Jane) (Entered: 08/24/2007)
32 Opposition re 16 MOTION to Certify Class filed by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels. (Attachments: # 1 Affidavit Stephanie Anthony# 2 Affidavit Debra S. Kamen# 3 Affidavit Francesca A. LaVecchia# 4 Affidavit Eleanor Shea−Delaney)(Cartee, Jennifer) (Entered: 08/24/2007)
Judge Kenneth P. Neiman : Electronic ORDER entered granting 30 Joint Motion for Endorsement of Parties' Stipulation as to the Preservation of Attorney−Client Privilege and Work Product Protection. So ordered. (Neiman, Kenneth) (Entered: 08/27/2007)
Remark To Clarify Docekt Set/Reset Deadlines as to 16 MOTION to Certify Class. Motion Hearing set for 9/24/2007 02:00 PM in Courtroom 1 before Judge Michael A Ponsor. (Pursuant to 8/17/07 Order of USMJ Neiman) (French, Elizabeth) (Entered: 08/27/2007)
Judge Kenneth P. Neiman : Electronic ORDER entered granting 31 Defendants' unopposed Motion for Clarification. A Revised Protective Order shall issue. (Neiman, Kenneth) (Entered: 08/27/2007)
33 Magistrate Judge Kenneth P. Neiman. REVISED PROTECTIVE ORDER, ENTERED, cc:cl. (Healy, Bethaney) Additional attachment(s) added on 8/27/2007 (Healy, Bethaney). (Entered: 08/27/2007)
34 REPLY to Response to Motion re 16 MOTION to Certify Class filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Attachments: # 1 Exhibit Affidavit)(Schwartz, Steven) (Entered: 09/07/2007)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor : granting 16 Motion to Certify Class; Motion Hearing held on 9/24/2007 re 16 MOTION to Certify Class filed by Nathaniel Wilson, Glen Jones, Raymond Puchalski, The Brain Injury Association of Massachusetts, The Stavros Center for Independent Living, Jason Cate, Catherine Hutchinson. Parties shall have seven days to negotiate definition of class and report to Court. (Court Reporter Alice Moran.) (French, Elizabeth) (Entered: 09/26/2007)
35 Judge Michael A Ponsor : ORDER entered. MEMORANDUM AND ORDER granting Ptf's 16 Motion for Class Certification, and Counsel are ordered to report to this court by 10/1/07 regarding their negotiations. See the attached memo & order for complete details. cc/cl(Lindsay, Maurice) (Entered: 09/26/2007)
Set/Reset Deadlines: Status Report due by 10/1/2007. (Lindsay, Maurice) (Entered: 09/26/2007)
36 STATUS REPORT on Class Definition by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Schwartz, Steven) (Entered: 10/01/2007)

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10/01/2007 10/01/2007 10/04/2007 10/11/2007 12/17/2007
06/02/2008
06/03/2008
06/04/2008 06/06/2008 06/13/2008
06/13/2008 06/13/2008 06/13/2008 06/13/2008 06/16/2008 06/26/2008

37 STATUS REPORT by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels. (Miller, Jennifer) (Entered: 10/01/2007)
38 NOTICE of Appearance by Jennifer G. Miller on behalf of Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels (Miller, Jennifer) (Entered: 10/01/2007)
39 Judge Michael A Ponsor : ORDER REGARDING CLASS DEFINITION entered. See the attached order for complete details. cc/cl (Lindsay, Maurice) (Entered: 10/04/2007)
40 TRANSCRIPT of Motion Hearing held on September 24, 2007 before Judge Ponsor. Court Reporter: Alice Moran. The original transcripts are maintained by the Clerk's Office. Copies may be obtained by contacting the court reporter at 413/731−0086 or the Clerk's Office. (Scalfani, Deborah) (Entered: 10/11/2007)
41 TRANSCRIPT of Motion Hearing held on August 15, 2007 before Judge Neiman. Digital Recording: Transcribed by Dianne Quinn. The original transcripts are maintained by the Clerk's Office. Copies may be obtained by contacting the Dianne Quinn at 413/562−7471 or the Clerk's Office. (Scalfani, Deborah) (Entered: 12/17/2007)
42 Joint MOTION for Settlement Agreement by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Ex. 1 Attachment A, # 3 Ex.2 Attachment B, # 4 Exhibit Class Notice)(Schwartz, Steven) (Additional attachment(s) added on 6/16/2008: # 5 Correct Exhibit Class Notice) (Finn, Mary). (Entered: 06/02/2008)
E−Mail Notice originally issued on 6/2/08 returned as undeliverable. Name of Addressee: Jane Willoughby. The ECF Help Desk has contacted the law firm on record, who advised that the attorney is no longer employed by that firm. The attorneys email address has been removed from the database to prevent the return of additional undeliverable email notices. (Hassett, Kathy) (Entered: 06/03/2008)
ELECTRONIC NOTICE of Hearing on Motion 42 Joint MOTION for Settlement Agreement : Motion Hearing set for 6/13/2008 12:00 PM in Courtroom 1 before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 06/04/2008)
Case no longer referred to Ch. Magistrate Judge Kenneth P. Neiman. (Healy, Bethaney) (Entered: 06/06/2008)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Hearing re Preliminary Fairness hearing held on 6/13/2008, ( Final Fairness Hearing set for 7/25/2008 03:30 PM in Courtroom 1 before Judge Michael A Ponsor.). (Docket no. 42 Preliminary approval allowed; Modification of Protective Order allowed; Revised Protective Order to be issued by court) Objections to be filed by 7/11/08; Fairness memos by 7/18/08; (Court Reporter: Sara Mubarek.)(Attorneys present: Miller/Schwartz/Rucker/McLaughlin) (French, Elizabeth) (Entered: 06/13/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 42 Motion for Preliminary Approval of comprehensive Settlement Agreement. cc/cl (Lindsay, Maurice) (Entered: 06/13/2008)
43 Joint MOTION to Modify Protective Order by Deval L. Patrick,et al., and Catherine Hutchinson, et al.,(Lindsay, Maurice) (Entered: 06/13/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting 43 Motion to Modify Protective Order. cc/cl (Lindsay, Maurice) (Entered: 06/13/2008)
44 Judge Michael A Ponsor: ORDER entered. PROTECTIVE ORDER.(Lindsay, Maurice) (Entered: 06/13/2008)
Notice of correction to docket made by Court staff. Correction: Document 42 corrected because: to add the correct last exhibit to the document − Class Notice (Finn, Mary) (Entered: 06/16/2008)
45 Transcript of Hearing held on June 13, 2008, before Judge Ponsor. Court Reporter: Sarah L. Mubarek at sarahmubarek@comcast.net. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER

Case: 3:07-cv-30084 As of: 11/29/2019 04:03 PM EST 12 of 17

06/26/2008 07/16/2008
07/18/2008 07/25/2008
07/29/2008 07/29/2008
07/31/2008 09/11/2008
09/15/2008 09/16/2008 09/18/2008 09/18/2008 09/18/2008 09/24/2008

after it is released. Redaction Request due 7/14/2008. Redacted Transcript Deadline set for 7/24/2008. Release of Transcript Restriction set for 9/22/2008. (Scalfani, Deborah) (Entered: 06/26/2008)
46 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 06/26/2008)
47 MEMORANDUM in Support re 42 Joint MOTION for Settlement Agreement filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Attachments: # 1 Exhibit K. Rucker Affidavit, # 2 Exhibit A.Korab Affidavit, # 3 Exhibit M.Glenn Affidavit, # 4 Exhibit S.Schwartz Affidavit)(Schwartz, Steven) (Entered: 07/16/2008)
48 MEMORANDUM in Support re 42 Joint MOTION for Settlement Agreement filed by Deval L. Patrick. (Miller, Jennifer) (Entered: 07/18/2008)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Hearing re: Final Fairness Hearing and Approval of Settlement held on 7/25/2008. Court orally approves the settlement. Counsel to submit a joint written motion to approve the settlement for the court's endorsement (Court Reporter: Alice Moran.)(Attorneys present: Schwartz, Rucker) (Stuckenbruck, John) (Entered: 07/25/2008)
49 MOTION for Settlement by Deval L. Patrick. (Attachments: # 1 Text of Proposed Order Proposed Order Approving Settlement Agreement)(Miller, Jennifer) (Entered: 07/29/2008)
50 MOTION for Order to Enter Order Approving Final Comprehensive Settlement Agreement by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Attachments: # 1 Text of Proposed Order)(Schwartz, Steven) (Entered: 07/29/2008)
ELECTRONIC NOTICE of Hearing on Motion 50 MOTION for Order to Enter Order Approving Final Comprehensive Settlement Agreement, 49 MOTION for Settlement : Motion Hearing set for 9/16/2008 03:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (French, Elizabeth) (Entered: 07/31/2008)
51 MEMORANDUM in Support re 50 MOTION for Order to Enter Order Approving Final Comprehensive Settlement Agreement filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Schwartz, Steven) (Entered: 09/11/2008)
52 MEMORANDUM in Support re 49 MOTION for Settlement filed by Deval L. Patrick. (Miller, Jennifer) (Entered: 09/15/2008)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Hearing re Hearing re: Settlement held on 9/16/2008. (Court Reporter: Alice Moran.)(Attorneys present: McLaughlin/Schwartz/Johnston/Miller) (French, Elizabeth) (Entered: 09/17/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting in part 49 Motion for Settlement. ALLOWED in part. See order issued this day. cc/cl (Lindsay, Maurice) (Entered: 09/19/2008)
Judge Michael A Ponsor: ENDORSED ORDER entered granting in part 50 Motion for Order Approving Settlement. ALLOWED in part. See order issued this day. cc/cl (Lindsay, Maurice) (Entered: 09/19/2008)
53 Judge Michael A Ponsor: ORDER entered. ORDER APPROVING FINAL COMPREHENSIVE SETTLEMENT AGREEMENT. See the attached order for complete details. cc/cl(Lindsay, Maurice) (Entered: 09/19/2008)
54 Transcript of Conference Hearing held on September 16, 2008, before Judge Ponsor. Court Reporter: Alice Moran at 413/731−0086. The Transcript may be purchased

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09/24/2008 05/20/2009 05/20/2009 06/02/2009
06/02/2009 06/02/2009 06/02/2009
06/02/2009 06/02/2009 06/05/2009 06/05/2009

through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 10/13/2008. Redacted Transcript Deadline set for 10/22/2008. Release of Transcript Restriction set for 12/22/2008. (Scalfani, Deborah) (Entered: 09/24/2008)
55 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 09/24/2008)
57 Transcript of Settlement Approval Hearing held on July 25, 2008, before Judge Ponsor. Court Reporter: Alice Moran at 413/731−0086. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 6/8/2009. Redacted Transcript Deadline set for 6/17/2009. Release of Transcript Restriction set for 8/17/2009. (Scalfani, Deborah) (Entered: 05/20/2009)
58 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 05/20/2009)
59 MOTION for Attorney Fees and Costs by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Attachments: # 1 Exhibit Summary of Fees and Costs, # 2 Exhibit Summary of Fees, # 3 Exhibit Summary of Costs, # 4 Exhibit Affidavit of S. Schwartz, # 5 Exhibit Affidavit of K. Rucker, # 6 Exhibit Affidavit of R. Johnston, # 7 Exhibit Affidavit of R. Johnston (2), # 8 Exhibit Affidavit of Dr. O'Shanick, # 9 Exhibit Affidavit of Dr. M. Glenn, # 10 Exhibit Affidavit of S. Hanlon, # 11 Exhibit Affidavit of D. Manning, # 12 Exhibit Affidavit of S. Rossman)(Schwartz, Steven) (Entered: 06/02/2009)
60 NOTICE OF MANUAL FILING by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones Exhibits 12 through 16 re 59 MOTION for Attorney Fees and Costs Exhibits 12 through 16 (Schwartz, Steven) (Entered: 06/02/2009)
61 Assented to MOTION for Leave to File Excess Pages in Memorandum in Support of Motion for Attorneys' Fees and Costs by Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones.(Schwartz, Steven) (Entered: 06/02/2009)
62 MEMORANDUM in Support re 59 MOTION for Attorney Fees and Costs, 61 Assented to MOTION for Leave to File Excess Pages in Memorandum in Support of Motion for Attorneys' Fees and Costs filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Schwartz, Steven) (Additional attachment(s) added on 6/2/2009: # 1 Correct Main document − part 1, # 2 part 2) (Finn, Mary). (Entered: 06/02/2009)
Notice of correction to docket made by Court staff. Correction: Documdnt 62 − Memorandum in support of Pltfs' motion for attorney's fees. corrected because: to separate the memorandum into twenty page sections. Documents filed with the court should be broken down into twenty page sections. (Finn, Mary) (Entered: 06/02/2009)
Judge Michael A Ponsor: ELECTRONIC ENDORSED ORDER entered granting the Pltfs' Assented to 61 Motion for Leave to File Memorandum in Excess of twenty Pages; cc/cl. (Finn, Mary) (Entered: 06/02/2009)
63 Assented to MOTION for Extension of Time to July 16, 2009 to File Response/Reply to Plaintiffs' Motion for an Award of Fees and Costs by Deval L. Patrick.(Miller, Jennifer) (Entered: 06/05/2009)
Judge Michael A Ponsor: ELECTRONIC ENDORSED ORDER entered granting 63 Motion for Extension of Time to File Response/Reply re 59 MOTION for Attorney Fees and Costs. Defts' Responses due by 7/16/2009; cc/cl. (Finn, Mary) (Entered:

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06/29/2009 07/06/2009 07/06/2009 07/06/2009 07/07/2009
07/07/2009 07/27/2009
07/27/2009 07/27/2009 07/27/2009 08/07/2009 09/01/2009 10/05/2009 10/15/2009

06/05/2009)
64 MOTION to Bifurcate Attorneys' Fee Proceedings by Deval L. Patrick.(Miller, Jennifer) (Entered: 06/29/2009)
65 MEMORANDUM in Opposition re 64 MOTION to Bifurcate Attorneys' Fee Proceedings filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Dube, Michael) (Entered: 07/06/2009)
66 AFFIDAVIT in Opposition re 64 Defts' motion to bifurcate attorneys' fee proceedings filed. (Dube, Michael) Modified on 7/6/2009 (Finn, Mary). (Entered: 07/06/2009)
Notice of correction to docket made by Court staff. Correction: Text of document 66 − Affidavit of Steven J. Schwartz in opposition to Ds' motion to bifurcate attotneys' fee proceeding. corrected because: To link document 66 to document 64 , not document 65 . (Finn, Mary) (Entered: 07/06/2009)
Judge Michael A Ponsor: ENDORSED ORDER entered denying the Defts' 64 Motion to Bifurcate Attorneys' Fee Proceedings. No justification exists for over−complicating disposition of the fee issue, which has already been pending for some time. Opposition will be filed by 7/27/2009 (an extension of ten (10) additional days), with reply by 8/17/2009; cc/cl. (Finn, Mary) (Entered: 07/07/2009)
Set/Reset Deadlines as to 59 MOTION for Attorney Fees and Costs. Defts' Responses due by 7/27/2009. Pltfs' Replies due by 8/17/2009. (Finn, Mary) (Entered: 07/07/2009)
67 MEMORANDUM in Opposition re 59 MOTION for Attorney Fees and Costs filed by Deval L. Patrick. (Attachments: # 1 Exhibit, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Miller, Jennifer) (Additional attachment(s) added on 7/27/2009: # 8 Correct Main Document − part 1, # 9 Part 2, # 10 Exhibit 1, # 11 Affidavit Jennifer Grace Miller, # 12 Exhibit, # 13 Exhibit B − part 1, # 14 Exhibit B part 2, # 15 Exhibit C, # 16 Exhibit D − part 1, # 17 Exhibit D − part 2, # 18 Exhibit E) (Finn, Mary). (Entered: 07/27/2009)
68 Assented to MOTION for Leave to File Excess Pages by Deval L. Patrick.(Miller, Jennifer) (Entered: 07/27/2009)
Notice of correction to docket made by Court staff. Correction: Document 67 Defts' memorandum in opp. to the Pltfs' motion for Attorney's Fees. corrected because: To break the main document into twenty page sections. Document over twenty (20) pages should be broken down into twenty page sections. (Finn, Mary) (Entered: 07/27/2009)
Judge Michael A Ponsor: ELECTRONIC ENDORSED ORDER entered granting 68 Motion for Leave to File Memorandum in Excess of twenty Pages; cc/cl. (Finn, Mary) (Entered: 07/27/2009)
69 REPLY to Response to 59 MOTION for Attorney Fees and Costs filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Schwartz, Steven) (Entered: 08/07/2009)
Set/Reset Deadlines as to 59 MOTION for Attorney Fees and Costs. Motion Hearing set for 10/8/2009 11:00 AM in Hampden Courtroom before Judge Michael A Ponsor. (Pelegano, Theresa) (Entered: 09/01/2009)
ELECTRONIC NOTICE OF RESCHEDULINGHearing set for 10/15/2009 03:00 PM in Hampden Courtroom before Judge Michael A Ponsor. (59) MOTION for Attorney Fees and Costs(Pelegano, Theresa) (Entered: 10/05/2009)
Electronic Clerk's Notes for proceedings held before Judge Michael A Ponsor: Motion Hearing held on 10/15/2009 re 59 MOTION for Attorney Fees and Costs filed by Nathaniel Wilson, Glen Jones, Raymond Puchalski, The Brain Injury Association of Massachusetts, The Stavros Center for Independent Living, Jason Cate, Catherine Hutchinson. Order to be issued. (Court Reporter: Alice Moran.)(Attorneys present: Johnston, Schwartz, Miller) (Pelegano, Theresa) (Entered: 10/16/2009)

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10/16/2009
10/23/2009
10/23/2009 12/16/2009 02/08/2010 02/22/2010 02/26/2010 03/01/2010 03/02/2010
03/02/2010 03/02/2010 03/17/2010 09/24/2010

E−Mail Notice re Electronic Clerk's Notes originally issued on 10/16/2009 returned as undeliverable. Name of Addressee: Jennifer Cartee. The ECF Help Desk has contacted the law firm on record, who advised that the attorney is no longer employed by that firm. The attorneys email address has been removed from the database to prevent the return of additional undeliverable email notices. (Burgos, Sandra) (Entered: 10/16/2009)
70 Transcript of Motion Hearing held on October 15, 2009, before Judge Ponsor. Court Reporter: Alice Moran at 413/731−0086. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 11/10/2009. Redacted Transcript Deadline set for 11/20/2009. Release of Transcript Restriction set for 1/19/2010. (Scalfani, Deborah) (Entered: 10/23/2009)
71 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 10/23/2009)
72 NOTICE by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones (Attachments: # 1 Supplement Supplemental Authority)(Schwartz, Steven) (Entered: 12/16/2009)
73 Judge Michael A Ponsor: MEMORANDUM AND ORDER entered granting 59 Motion for Attorney Fees and Costs. See the attached memo and order for complete details. (Lindsay, Maurice) (Entered: 02/08/2010)
74 MOTION for Entry of Judgment under Rule 54(b) by Deval L. Patrick. (Attachments: # 1 Text of Proposed Order)(Miller, Jennifer) (Entered: 02/22/2010)
75 Opposition re 74 MOTION for Entry of Judgment under Rule 54(b) filed by The Stavros Center for Independent Living, Nathaniel Wilson, Catherine Hutchinson, The Brain Injury Association of Massachusetts, Raymond Puchalski, Jason Cate, Glen Jones. (Schwartz, Steven) (Entered: 02/26/2010)
Judge Michael A Ponsor: ENDORSED ORDER entered denying 74 Motion for Entry of Judgment under Rule 54(b). DENIED. As plaintiffs' memo makes clear, the court's fee decision is appealable without entry of judgment under rule 54(b). So ordered. (Lindsay, Maurice) (Entered: 03/01/2010)
76 NOTICE OF APPEAL by Deval L. Patrick, Judy Ann Bigby, Leslie Kirwan, Thomas Dehner, Elmer C. Bartels NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. Appeal Record due by 3/22/2010. (Miller, Jennifer) (Entered: 03/02/2010)
77 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 76 Notice of Appeal, (Ramos, Jeanette) (Entered: 03/02/2010)
USCA Case Number 10−1268 for 76 Notice of Appeal, filed by Leslie Kirwan, Judy Ann Bigby, Deval L. Patrick, Thomas Dehner, Elmer C. Bartels. (Ramos, Jeanette) (Entered: 03/02/2010)
Filing fee/payment: $ 455.00, receipt number SPR000746 for 76 Notice of Appeal. (Finn, Mary) (Entered: 03/17/2010)
78 Judge Michael A Ponsor: ORDER TO ADMINISTRATIVELY CLOSE CASE entered. The Court hereby orders that the clerk administratively close this case. The Court will, of course, continue its ongoing oversight as contemplated by the final Comprehensive Settlement Agreement executed by the parties. (Finn, Mary) (Entered: 09/24/2010)

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09/24/2010 09/26/2011 09/26/2011
09/26/2011 06/19/2013 06/19/2013 06/19/2013
06/20/2013
06/20/2013 06/20/2013 07/09/2013
07/09/2013 07/11/2013 07/11/2013 07/12/2013

Civil Case Terminated. (Finn, Mary) (Entered: 09/24/2010)
79 OPINION of USCA as to 76 Notice of Appeal, filed by Leslie Kirwan, Judy Ann Bigby, Deval L. Patrick, Thomas Dehner, Elmer C. Bartels. (Ramos, Jeanette) (Entered: 09/26/2011)
80 USCA Judgment as to 76 Notice of Appeal, filed by Leslie Kirwan, Judy Ann Bigby, Deval L. Patrick, Thomas Dehner, Elmer C. Bartels. This cause came on to be heard on appeal from the United Stated District Court for the District of Massachusetts and was argued by counsel. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed. (Ramos, Jeanette) (Entered: 09/26/2011)
81 MANDATE of USCA as to 76 Notice of Appeal, filed by Leslie Kirwan, Judy Ann Bigby, Deval L. Patrick, Thomas Dehner, Elmer C. Bartels. Appeal 76 Terminated (Ramos, Jeanette) (Entered: 09/26/2011)
82 ELECTRONIC NOTICE of Hearing.Hearing set for 6/25/2013 11:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 06/19/2013)
83 NOTICE of Appearance by John Michael Stephan on behalf of Elmer C. Bartels, Judy Ann Bigby, Thomas Dehner, Leslie Kirwan, Deval L. Patrick (Stephan, John) (Entered: 06/19/2013)
84 Joint MOTION for Settlement Approval and MOTION for a Fairness Hearing by Elmer C. Bartels, Judy Ann Bigby, Thomas Dehner, Leslie Kirwan, Deval L. Patrick. (Attachments: # 1 Amended Settlement Agreement, # 2 Proposed Notice to Class)(Stephan, John). Added an additional relief − MOTION for Hearing on 6/20/2013 (Finn, Mary). (Additional attachment(s) added on 7/12/2013: # 3 Supplement signature page submitted in court on 7/11/13 Parrties requested document be added to motion) (Pelegano, Theresa). (Entered: 06/19/2013)
85 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 84 Joint Motion for Preliminary Approval of Amended Settlement Agreement, for approval of a notice to the class, and for scheduling of a fairness hearing. ALLOWED. a hearing on this preliminary motion is unnecessary. The clerk will schedule the fairness hearing as requested. So ordered. (Lindsay, Maurice) (Entered: 06/20/2013)
86 ELECTRONIC NOTICE Canceling Hearing. Hearing set for 6/25/2013 11:30 AM in Hampden Courtroom is canceled. (Pelegano, Theresa) (Entered: 06/20/2013)
87 ELECTRONIC NOTICE Setting Hearing on Motion Motion Hearing for a Fairness Hearing set for 7/11/2013 11:30 AM in Hampden Courtroom before Judge Michael A. Ponsor. (Pelegano, Theresa) (Entered: 06/20/2013)
88 MEMORANDUM in Support re 84 Joint MOTION for Settlement Approval MOTION for Hearing filed by Jason Cate, Catherine Hutchinson, Glen Jones, Raymond Puchalski, The Brain Injury Association of Massachusetts, The Stavros Center for Independent Living, Nathaniel Wilson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Schwartz, Steven) (Entered: 07/09/2013)
89 MEMORANDUM in Support re 84 Joint MOTION for Settlement Approval MOTION for Hearing filed by Elmer C. Bartels, Judy Ann Bigby, Thomas Dehner, Leslie Kirwan, Deval L. Patrick. (Stephan, John) (Entered: 07/09/2013)
90 ELECTRONIC Clerk's Notes for proceedings held before Judge Michael A. Ponsor: Hearing re Fairness hearing held on 7/11/2013. Court signs proposed order. Order to issue. (Court Reporter: Alice Moran at 413−731−0086.) (Pelegano, Theresa) (Entered: 07/11/2013)
91 Judge Michael A. Ponsor: ORDER entered Approving Settlement Agreement. (Pelegano, Theresa) (Entered: 07/12/2013)
92 Assented to MOTION for Extension of Time to 10/1/2013 to File Motion for Attorneys' Fees and Costs by Jason Cate, Catherine Hutchinson, Glen Jones, Raymond Puchalski, The Brain Injury Association of Massachusetts, The Stavros Center for Independent Living, Nathaniel Wilson.(Schwartz, Steven) (Entered: 07/12/2013)

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07/12/2013 07/12/2013 07/30/2013
07/30/2013
06/23/2014 06/27/2014 06/27/2014 01/30/2015 01/30/2015 04/03/2015 08/28/2017 08/28/2017

93 Judge Michael A. Ponsor: ELECTRONIC ORDER entered granting Pltfs' 92 Motion for Extension of Time to 10/1/2013 to file Motion for Attorney's Fees. (Finn, Mary) (Entered: 07/12/2013)
94 Set/Reset Deadlines: Plfts's Motion for Attorney's Fees due by 10/1/2013. (Finn, Mary) (Entered: 07/12/2013)
95 Transcript of Fairness Hearing held on July 11, 2013, before Judge Michael A. Ponsor. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Alice Moran at 413−731−0086 Redaction Request due 8/20/2013. Redacted Transcript Deadline set for 8/30/2013. Release of Transcript Restriction set for 10/28/2013. (Scalfani, Deborah) (Entered: 07/30/2013)
96 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/30/2013)
97 Joint MOTION to Modify Protective Order by Elmer C. Bartels, Judy Ann Bigby, Thomas Dehner, Leslie Kirwan, Deval L. Patrick. (Attachments: # 1 Exhibit Protective Order)(Stephan, John) (Entered: 06/23/2014)
98 Judge Michael A. Ponsor: ENDORSED ORDER entered granting 97 Joint Motion to Modify Protective Order. ALLOWED. See order. (Lindsay, Maurice) (Entered: 06/27/2014)
99 Judge Michael A. Ponsor: ORDER entered. PROTECTIVE ORDER, see the attached order for details. (Lindsay, Maurice) (Entered: 06/27/2014)
100 NOTICE of Withdrawal of Appearance by Richard A. Johnston (Johnston, Richard) (Entered: 01/30/2015)
101 NOTICE of Appearance by James W. Prendergast on behalf of Catherine Hutchinson (Prendergast, James) (Entered: 01/30/2015)
102 NOTICE of Withdrawal of Appearance by John Michael Stephan (Stephan, John) (Entered: 04/03/2015)
103 NOTICE of Appearance by Daniel W. Halston on behalf of Catherine Hutchinson (Halston, Daniel) (Entered: 08/28/2017)
104 NOTICE of Withdrawal of Appearance by James W. Prendergast (Prendergast, James) (Entered: 08/28/2017)


[CONTENT] May 17, 2007 | Medicaid | the Brain Injury Association of Massachusetts | the U.S. District Court | Massachusetts ||| Massachusetts | Title II | Americans | ADA | 42 | Section 504 | the Rehabilitation Act | 29 | U.S.C. | § | 42 ||| the Center for Public Representation | Massachusetts | ADA | Rehabilitation Act | Social Security Act ||| Massachusetts ||| the Supreme Court's | 527 | U.S. | 581 | 1999)</a | ADA ||| at least a quarter | more than 8,000 | Massachusetts |||  ||| September 26, 2007 ||| May 30, 2008 ||| Massachusetts | six months | the Centers for Medicare | Medicaid Services | Medicaid Home | Community-Based Services | HCBS | Social Security Act ||| 300 ||| Individualized Service Plan |||  ||| Massachusetts | annual | Medicaid | Title XIX | 164,131 | annual | Medicaid | 87,919 ||| Medicaid | 15,000,000 |||  ||| Massachusetts ||| June 2, 2009 | ADA ||| 42 | 12205 ||| Massachusetts ||| State | 750,000 ||| 683 ||| 2d 121 ||| Massachusetts ||| February 17, 2011 | the First Circuit Court of Appeals | J. ||| 636 | 1 ||| June 19, 2013 | thousands ||| the Amended Agreement | the Money Follows the Person | up to | 1,174 | Medicaid ||| July 11, 2013 | Michael A. Ponsor |||  ||| six years ||| June 27, 2014 | Ponsor | Protective Order | August 27, 2007 | PHI ||| six-year | July 1, 2019 [SUMMARY] On May 17, 2007, Medicaid-eligible individuals with acquired brain injuries qualifying for long-term care services in nursing or rehabilitation facilities and the Brain Injury Association of Massachusetts filed this class-action lawsuit in the U.S. District Court for the District of Massachusetts, on behalf of themselves and others similarly situated. The plaintiffs sued Massachusetts under Title II of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12132 <i>et seq.</i>), Section 504 of the Rehabilitation Act (29 U.S.C. § 794(a)), and the Social Security Act (42 U.S.C. § 1396a(a)(8), (a)(10)(A)). Represented by the Center for Public Representation and private counsel, the plaintiffs sought to enjoin Massachusetts to comply with the ADA, Rehabilitation Act, and Social Security Act by offering services and programs for individuals with acquired brain injuries in integrated community settings.

Specifically, the plaintiffs alleged that Massachusetts had illegally discriminated against them on the basis of disability. They cited the Supreme Court's decision in <a href=https://www.clearinghouse.net/detail.php?id=11643><i>Olmstead v. L.C.</i>, 527 U.S. 581 (1999)</a>, which held that the ADA forbids the unnecessary institutionalization of individuals with disabilities, and mandates that their rehabilitative and medical needs be provided in a manner that enables individuals with disabilities to be independent and integrated members of the community. The plaintiffs alleged that at least a quarter of the more than 8,000 individuals with traumatic brain injuries living in nursing homes or rehabilitation facilities in Massachusetts would be able to and would prefer to reside in an integrated community setting, provided they received appropriate aids and support. The plaintiffs alleged that in the absence of these services, they were unlawfully denied their personal liberty, freedom of association, and meaningful access to community life.

On September 26, 2007, the court certified the class.

On May 30, 2008, the parties entered a court-approved settlement agreement. Under the settlement, Massachusetts agreed that within six months of the effective date of the settlement it would issue a proposal to the Centers for Medicare and Medicaid Services to establish a Medicaid Home and Community-Based Services (HCBS) (§1915(c) of the Social Security Act) waiver program that would enable individuals with traumatic brain injuries the option of a community-placed living situation. Initially this program would offer 300 such waivers.  Individuals receiving the waivers would participate in developing their own Individualized Service Plan with an interdisciplinary team and would receive services appropriate to their level of need. Waiver recipients would have the option of living with family, where applicable, or of living in the most integrated setting appropriate to their needs, e.g., their own apartment or home, or in a group home.

Massachusetts reserved the right to deny waivers to any person whose annual costs of care to Medicaid from residential habilitation and other waiver services, plus Title XIX state plan services, would exceed $164,131, and also to deny waivers to any person whose annual Medicaid waiver costs, exclusive of Title XIX and residential costs, would likely exceed $87,919.  The settlement limited the total cost of the waiver program, inclusive of all Medicaid and state-funded expenditures for the participants, to $15,000,000. In order to stay within this cap, the state reserved the right to take corrective actions, such as reducing the number of waivers available. Massachusetts also agreed to implement an education and outreach program in order to educate individuals with acquired traumatic brain injuries about the program.

On June 2, 2009, the plaintiffs filed a motion seeking reasonable attorneys' fees and costs under the fee shifting provisions of the ADA, which allow a "prevailing party" plaintiff to recover expenses from a defendant. 42 U.S.C. § 12205. Massachusetts objected, arguing that the court-approved class action settlement, which expressly was not a court-ordered consent decree, was insufficient to establish the plaintiffs as the prevailing party. The court granted the plaintiffs' motion, ordering the State to pay $750,000 in attorneys' fees. 683 F. Supp. 2d 121. Massachusetts appealed. On February 17, 2011, the First Circuit Court of Appeals (Selya, J.) affirmed the lower court’s decision. 636 F.3d 1. 

On June 19, 2013, the parties agreed to a new settlement agreement that would replace the original agreement, which the state was unable to fully implement because it could not secure federal grant funding for community-based services, leaving thousands of individuals with brain injuries languishing in facilities across the state.  Under the Amended Agreement, the state would use another federal grant project, the Money Follows the Person (MFP) Demonstration, as well as other waiver programs, to provide residential and non-residential supports for up to 1,174 Medicaid-eligible people with brain injuries who were in long-term rehabilitation facilities and nursing homes.  

On July 11, 2013, the district court (Judge Michael A. Ponsor) issued final approval of the amended settlement agreement. The court retained jurisdiction over the case. The agreement was to last for six years.  

On June 27, 2014, Judge Ponsor revised a Protective Order originally granted on August 27, 2007, adjusting and broadening the scope of protected health information (PHI) for class members and their guardians.

No substantive docket entries were made during the remainder of the six-year term, which ended on July 1, 2019, so the case is presumably now closed. 