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BROWN v. LUNA

April 26, 1990

HELEN J. BROWN, et al., individually and on behalf of all others similarly situated, Plaintiffs, ALBERT CHAPMAN, et al., individually and on behalf of all others similarly situated, Plaintiffs-Intervenors,
v.
J.W. LUNA, in his official capacity as Commissioner, Tennessee Department of Health and Environment, et al., Defendants



The opinion of the court was delivered by: WISEMAN, JR.

 THOMAS A. WISEMAN, JR., CHIEF UNITED STATES DISTRICT JUDGE

 This matter is currently before the Court on two motions. Plaintiffs seek to have defendants adjudicated in civil contempt for violation of this Court's August 29, 1988, Partial Consent Order ("the Order"). Defendants' motion asks the Court to modify the Order based upon changes in federal law. At a hearing on these motions on March 5, 1990, the Court held that defendants were in contempt of Court for failure to substantially comply with the Order. Accordingly, defendants were ordered to submit a plan for a proposed remedy and plaintiffs were invited to respond to that proposed remedy. Hearings on the proposed remedy were held on March 26 and April 16. As explained below, the Court: 1) again finds that defendants are in civil contempt for failing to adhere to the Court's August 1988 Partial Consent Order and issues an appropriate sanction therefor; and 2) GRANTS defendants' motion to modify the Order based upon subsequent changes in federal law.

 This case involves disability-based medical assistance provided under the Medicaid program. When this action was initiated, federal law required that the Tennessee Department of Human Services ("DHS") make determinations of eligibility under the program within 60 days from the date of application. 42 U.S.C. § 1396a(a)(8) ("assistance shall be furnished with reasonable promptness to all eligible individuals"); 42 C.F.R. § 435.911(a)(1) (1989) (establishes the 60-day time limit); 42 C.F.R. § 435.930(a) (1989) (a state agency must "furnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures"). DHS is relieved of the 60-day time limitation when there are delays in the case beyond the agency's control. 42 C.F.R. § 435.911(c)(1) and (2) (1989).

 THE PARTIAL CONSENT ORDER

 Plaintiffs filed this action in April of 1988, alleging that defendants were not determining Medicaid eligibility on the basis of disability within the guidelines set forth above. Following "extensive negotiations," the parties agreed to a "partial consent order for prospective relief" which was entered by this Court on August 29, 1988. The Order, which remains in force, contains the following important provisions: 1) DHS must make eligibility determinations "within 60 calendar days as required under 42 U.S.C. § 1396a(a)(8) and (17) and 42 C.F.R. §§ 435.911 and 435.930, except where delay is for 'good cause'." Order at para. 12. 2) An application is delayed with good cause only if defendants have documented that they have complied with timetables for the eligibility determination process which were agreed to by the parties, or the delay is caused by an "emergency beyond the control of DHS." Order at para. 13. 3) DHS must determine by 80 days from the date of application whether any application still pending on the 61st day was delayed with or without good cause. Order at para. 14. 4) Finally, footnote 2 of the Order provides, in part:

 
"The parties acknowledge that possible future changes in federal law or regulations may affect the time frames prescribed in this order to meet current federal timeliness standards. This consent order shall not preclude any party from seeking or opposing modification of this order in response to future changes in federal law or regulations . . . ."

 Order at p. 11, n. 2.

 DEFENDANTS' CONTEMPT

 In August of 1989, plaintiffs moved the Court to hold that defendants were in contempt of the Order. Following review of the extensive pleadings and exhibits filed by both parties, the Court ruled on March 5, 1990, that defendants were in contempt due to their failure to substantially comply with the Order. Defendants admit that they have not been making good cause determinations for cases pending more than 60 days within the strictures of the Order. In addition, plaintiffs have demonstrated that a substantial number of cases designated as delayed with good cause did not have the proper documentation of good cause required by the Order.

 Defendants also admit that they did not make eligibility determinations in compliance with the Order prior to May 1989. For the months of May through August of 1989, however, defendants argue that they were in substantial compliance. Defendants assert that since only 2.8% of all eligibility decisions were approvals after 60 days without good cause, then they were in compliance. Plaintiffs, on the other hand, contend that the appropriate statistic is that 28% of all eligibility determinations from April through August 1989 were made after 60 days. Cited alone, however, neither of these statistics can tell the full story of defendants' level of compliance. Defendants fail to recognize that all determinations made after 60 days without good cause, whether approvals or denials, violated the order. Plaintiffs fail to recognize that delays not attributable to defendants are improperly included in their 28% figure.

 There are other relevant statistics which may be divined from the materials supplied to the Court by the parties. From May through December of 1989: Twenty-eight percent, or 1,023 of 3,635 total cases decided after 60 days were delayed without good cause; 6.4% or 1,023 of 15,918 total eligibility decisions made were designated by DHS as delayed beyond 60 days without good cause; and an average of 16.7% of the cases awaiting an eligibility determination had been pending over 60 days. In addition, defendant Mary Ann Calahan admitted to the Court that many of the cases designated by DHS as delayed with good cause may actually have been delayed without good cause. Calahan stated that proper documentation procedures were not followed in several instances. Combined, these various factors lead the Court to reiterate its earlier ruling that defendants have failed to substantially comply with this Court's August 29, 1988, Order.

 When a consent decree is entered in a case, a court will: "1) retain jurisdiction over the decree during the term of its existence; 2) protect the integrity of the decree with its contempt powers; and 3) modify the decree should 'changed circumstances' subvert its intended purpose." Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). Contempt proceedings are an appropriate avenue through which this Court may assure compliance with its August 1988 Partial ...


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