Linton v. Commissioner of Health and Environment, State of Tennessee Brief of the Defendant-Intervenors/Appellants

    . . ‘ ^ w -sW a

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

MILDRED LEA LINTON, by her next friend )
KATHY ARNOLD, on her own behalf and on )
behalf of all other persons )
similarly situated, )

)
Plaintiff, )

)
BELLE CARNEY, by her next friend 
KIMBLE, on her own behalf and on 
of all other persons similarly 
situated,

Plaintiff-Intervenor, 
v.
COMMISSIONER OF HEALTH AND 
ENVIRONMENT, STATE OF TENNESSEE,

Defendant,
ST. PETER VILLA, INC.; 
PRESBYTERIAN HOMES OF TENNESSEE, 
RHA/SULLIVAN, INC.;
CEDARS HEALTH CARE CENTER, INC.; 
McKENDREE VILLAGE, INC.;

Defendant-Intervenors/ 
Appellants.

MARY ) 
behalf )

)
) NOS. 93-6142/6143/
) 6144/6146/6147
) (District Court No.
) 3:87-0941)
)
) ORAL ARGUMENT
) REQUESTED
)
)
)
)
)

INC.; )
)
)
)
)
)
)

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE

BRIEF OF THE DEFENDANT-INTERVENORS/APPELLANTS

WILLIAM M. BARRICK 
P. 0. Box 100129 
Nashville, TN 37224 
(615) 834-6520

JOEL M. HAMME 
JOSEPH W. METRO 
Reed Smith Shaw & McClay 
1200 18th Street, N.W. 
Washington, D.C. 20036 
(202) 457-6100

Attorneys for Defendant-Intervenors/Appellants



TABLE OF CONTENTS

TABLE OF AUTHORITIES .........................................iii
DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTERESTS..viii
I. JURISDICTIONAL STATEMENT ..................................  1
II. STATEMENT IN SUPPORT OF ORAL ARGUMENT ....................  1
III. ISSUES PRESENTED FOR REVIEW .............................  1
IV. STATEMENT OF THE CASE AND FACTS ..........................  2

A. Nature and Course of the Proceedings .................  2
B . Statement of Relevant Facts ..........................  6

1. The Nature of Plaintiffs' Claims .............. 6
2. Evidence Concerning Title VI Disparate Impact

Claims ..........................................  9
a. The Parties' Statistical Evidence ..........  9
b. Anecdotal Evidence ........................  13
c. Testimony of Beverly Bass .................  13
d. Shelby County Information .................  14

3. The District Court's Order and Remedial Plan .... 14
V. SUMMARY OF ARGUMENT ......................................  17
VI. ARGUMENT ................................................  18

A. The District Court's Finding of a Violation of
Title VI Is Clearly Erroneous .......................  18

1. Standard of Review .............................  18
2. The District Court's Disparate Impact Holding Is

Erroneous ......................................  18
a. Plaintiffs Failed to Show a Statistically

Significant Disparity .....................  22
(1) Plaintiffs and the District Court

Failed to Compare the Proper Groups .. 22
(2) The Record Contains No Evidence 

Concerning the Statistical 
Significance of Plaintiffs'
Comparisons .........................  28

(3) The Evidence of Record That Most 
Closely Approaches Wards Cove's 
Requirements Demonstrates That There
Is No Apparent Statistical Disparity 29

(4) Plaintiffs' Anecdotal Evidence Does
Not Support a Disparate Impact .......  30

b. Plaintiffs' Evidence Fails to Demonstrate 
Any Causal Link Between the Policy In 
Question and Any Alleged Disparity 32



(1) Plaintiffs Failed to Offer Adequate
Evidence Demonstrating a Causal Link 
Between the Tennessee Certification 
Policy and the Alleged Disparity .... 33

(2) Plaintiffs' "Theory of the Case" is
Insufficient to Demonstrate Causation 35

(3) The State's Evidence Belies Any
Inference of Causation ..............  38

B. The District Court Abused Its Discretion in Adopting
the Remedies of the Linton Plan .....................  41

1. Standard of Review .............................  41
2. The Linton Plan Amounts to an Abuse of

Discretion .....................................  42
a. The Linton Plan Is Overbroad and Includes

Remedies Not Related to the Violations .... 42
b. The "Lock-in" and "Lock-out" Provisions of 

the Linton Plan Violate Federal Laws and 
Constitutional Provisions, Are Not 
Authorized by State Law and Are 
Inappropriate Remedies for the Violation
Found by the District Court ............... 43

(1) The "Lock-in" And "Lock-out"
Provisions of the Linton Plan Are 
Contrary to Federal Law and 
Unauthorized by State Law ...........  45

(2) The Lock-in And Lock-out Requirements
Impair Appellants' Contracts ........  47

VII. CONCLUSION .............................................  49
CERTIFICATE OF SERVICE
APPELLANTS' DESIGNATION OF APPENDIX CONTENTS

-11-



TABLE OF AUTHORITIES

CASES
Abbott v. Federal Forge, Inc.. 912 F.2d 867 (6th

Cir. 1990) ....................................  20, 24, 28,
29

Alexander v. Choate. 469 U.S. 287 (1984) ...........  19, 36
American Motor Sales Coro, v. Runke. 708 F.2d 202

(6th Cir. 1983) ...............................  41
Cerrato v. San Francisco Community College Dist..

26 F . 3d 968 (9th Cir. 1994) ...................  23
Connecticut v. Teal. 457 U.S. 440 (1982) ...........  21
Cook v. Hairston. 735 F. Supp. 239 (S.D. Ohio

1990), aff'd. 948 F.2d 1288 (6th Cir. 1991) ___ 8
Curtis v. Taylor. 625 F.2d 645 (5th Cir.),

modified. 648 F.2d 946 (5th Cir. 1980) ........  8
Davis v. Yazoo County Welfare Dept.. 942 F.2d 884

(5th Cir. 1991) ...............................  28
Elston v. Talladega County Bd. of Educ.. 997 F.2d

1394 (11th Cir. 1993) .........................  18, 20, 33,
39

Energy Reserves Group, Inc, v. Kansas Power and
Light Co. . 459 U.S. 413 (1983) ................  48

Firefighters Local U. 1784 v. Stotts. 467 U.S 561
(1984) ........................................  41

General Motors v. Romein. 112 S. Ct. 1105 (1992) .... 47
Gibson v. Frank. 946 F.2d 1229 (6th Cir. 1991) .....  30, 31, 32
Gilty v. Village of Oak Park. 919 F.2d 1247 (7th

Cir. 1990)   33-34
Gorka v. Sullivan. No. IP 93-1278C (S.D. Ind. Jul.

29, 1994) .................... ................. 8
Griggs v. Duke Power Co.. 401 U.S. 421 (1971) ......  19
Guardians Ass'n v. Civil Service Comm'n. 463 U.S

582 (1983) ................... .................  19

-iii-



Hearth. Inc, v. Dept, of Public Welfare. 617 F.2d
381 (5th Cir. 1980) ...........................  45

Hill v. Seaboard Coast Line R. Co.. 885 F.2d 804
(11th Cir. 1989) ..............................  28

Illinois Physicians U. v. Miller. 675 F.2d 151
(7th Cir. 1982) ...............................  45

Linton v. Commissioner. 1994 U.S. App. LEXIS 17684 
(6th Cir. Jul. 19, 1994), reprinted in 
Medicare & Medicaid Guide (CCH) H 42,560 ......  5

Linton v. Commissioner. 973 F.2d 1311 (6th Cir.
1992) .........................................  4

Lopez v. Laborers Int'l U. Local No. 18. 987 F.2d
1210 (5th Cir. 1993)   24, 25

McNairn v. Sullivan. 929 F.2d 974 (4th Cir. 1991) ... 23
Minnesota Assn, of Health Care Facilities v. Minn.

Dept, of Public Welfare. 602 F.2d 150 (8th
Cir. 1979) ....................................  45

Newfield House v. Mass. Dept, of Public Welfare.
651 F. 2d 32 (1st Cir. 1981) ...................  45

Ohio Bell Tel. Co. v. F.C.C.. 949 F.2d 864 (6th
Cir. 1991) ....................................  41

Ortega v. Safeway Stores. Inc.. 943 F.2d 1230
(10th Cir. 1991) ..............................  24

Police Officers for Equal Rights v. City of
Columbus. 916 F.2d 1092 (6th Cir. 1991) .......  20

Pullman-Standard v. Swint. 456 U.S. 273 (1982) .....  30
Roe v. Casey. 464 F. Supp. 487 (E.D. Pa. 1978),

af f' d 623 F. 2d 829 (3d Cir. 1980) .............  8
Scales v. J.C. Bradford & Co.. 925 F.2d 901 (6th

Cir. 1991) ....................................  18
Sobley v. Smolev. 1994 WL 271976 (E.D. Cal. 1994) ... 8
Swann v. Charlotte-Mecklenburq Bd. of Educ.. 402

U.S. 1 (1971) .................................  41
Teamsters v. United States. 431 U.S. 324 (1977) .... 29
United States Trust Co. v. New Jersey. 431 U.S. 1

(1977> ........................................  47, 48, 49
-iv-



41
United States v. City of Parma. 661 F.2d 562 (6th 

Cir. 1981) ...............................
United States v. United States Gypsum Co.. 333

U.S. 365 (1948) ...............................  18
Vanguards of Cleveland v. City of Cleveland. 753

F. 2d 479 (6th Cir. 1985) ......................  41
Wards Cove Packing Co. v. Atonio. 490 U.S. 642

(1989) ........................................  1, 20, 21,
23, 24, 29, 
33, 38

Watson v. Fort Worth Bank & Trust. 487 U.S. 977
(1988)   33

Weaver v. Reagan. 886 F.2d 194 (8th Cir. 1989) ..... 8
Whitney v. Heckler. 780 F.2d 963 (11th Cir. 1986) ... 45

STATUTES
28 U.S.C. § 1291 ....................... ............ 1
28 U.S.C. § 1331 ...................................  1
29 U.S.C. § 794 ....................................  1
42 U.S.C. § 1320a-7 ................................  46
42 U.S.C. § 1396 et seq............................... 1
42 U.S.C. § 1396a ..................................  2
42 U.S.C. § 1396a (a) ...............................  2
42 U.S.C. § 1396a (a) (1) ......... ................. 6
42 U.S.C. § 1396a (a) (10) ..........................  6
42 U.S.C. § 1396a (a) (10) (A)   36
42 U.S.C. § 1396a (a) (10) (A) (1982) .................  6
42 U.S.C. § 1396a (a) (19) ......... ................. 6
42 U.S.C. § 1396a (a) (27) ..........................  47
42 U.S.C. § 1396a(a) (30) .......... ;................ 6/ 49
42 U.S.C. § 1396a (a) (30) (A)   8, 45

-v-



42 U.S.C. § 1396a (a) (33)   6
42 U.S.C. § 1396a (a) (5)   6
42 U.S.C. § 1396a (a) (8)   6
42 U.S.C. § 1396a (b)   2
42 U.S.C. § 1396c ..................................  2
42 U.S.C. § 1396d (a) (15) (1982) ....................  6
42 U.S.C. § 1396d (a) (4) (A) (1982) ..................  6
42 U.S.C. § 1396d (d) (1982) ........................  6
42 U.S.C. § 1396d(f) (1982) ........................  6
42 U.S.C. § 1396d (i) (1982) ........................  6
42 U.S.C. § 13 96r (a)   6, 37
42 U.S.C. § 1396r (c) (2) (D) (iii) ...................  38
42 U.S.C. § 1396r (c) (4)   37
42 U.S.C. § 1396r (c) (5) (A)   38
42 U.S.C. § 1396r (c) (5) (B) (i)   38
42 U.S.C. § 1983 ...................................  1
42 U.S.C. § 2000d   19
42 U.S.C. § 2000d et seq............................  1
42 U.S.C. § 2000e et seq............................  19
42 U.S.C. § 2000e-2 (k) (1) (A) (i)   21
42 U.S.C. § 2000e-2 (k) (1) (A) (ii) ..................  21
Civil Rights Act Amendments of 1991, P.L. No.

102-166 .......................................  21
Omnibus Budget Reconciliation Act of 1987, P.L.

No. 100-203 ...................................  6
Tenn. Code Ann. § 71-5-118   46

-vi-



REGULATIONS
42 C.F.R. Part 1001   46
42 C.F.R. Part 440   26
42 C.F.R. Part 498   46
42 C.F.R. § 430.2   19
42 C.F.R. § 431.107   47
42 C.F.R. § 440.150(d) (1986)   6, 7
42 C.F.R. § 440.40 (a) (ii) (1986)   6, 7
42 C.F.R. § 442.1   47
42 C.F.R. § 442.12   46
42 C.F.R. § 442.2 (1986) ...........................  6, 7, 37
42 C.F.R. § 442.200 et seq. (1987) .................  6
42 C.F.R. § 447.204   45
42 C.F.R. § 483.12 (b) (3) ...........................  38
42 C.F.R. § 483.12(c)(1) ...........................  37
42 C.F.R. § 483.12 (d)   38
42 C.F.R. § 483.12 (d) (4) ........................... 38
42 C.F.R. § 489.10 (a) (2) ........................... 19
4 5 C.F.R. Part 80, App. A ..........................  19

OTHER AUTHORITIES
U.S. Const., art. I, § 10 ..........................  47

- v n  -



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MILDRED LEA LINTON, by her )
next friend KATHY ARNOLD, )
on her own behalf and on )
behalf of all other persons )
similarly situated, )

Plaintiff, j
BELLE CARNEY, by her next )
friend MARY KIMBLE, on her own )
behalf and on behalf of all )
other persons similarly )
situated, )

Plaintiff-Intervenor, j
)

COMMISSIONER OF HEALTH AND )
ENVIRONMENT, STATE OF )
TENNESSEE, )

Defendant, j
ST. PETER VILLA, INC.; j
PRESBYTERIAN HOMES OF TENNESSEE, INC.; ) 
RHA/SULLIVAN, INC.; )
CEDARS HEALTH CARE CENTER, INC.; )
McKENDREE VILLAGE, INC.; )

Defendant-Intervenors/ j
Appellants. \

NOS. 93-6142/6143/ 
6144/6146/6147 
(District Court No. 
3:87-0941)

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, St. Peter Villa, Inc. makes the following disclosure:
1. Is said party a subsidiary or

corporation? No affiliate of a publicly owned

viii



2. Is there a publicly owned corporation, not a party to the
appeal, that has a financial interest in the outcome? Yes

If the answer is YES, list below the identity of the parent
corporation or affiliate and the relationship between it and
the named party:

If the answer is YES, list the identity of such corporation 
and the nature of the financial interest:
Hillhaven Corporation 
Beverly Enterprises 
National Health Corp. L.P.
Diversicare Corporation
Health Care and Retirement Corporation
National Heritage, Inc.
These corporations, to the extent that they may have nursing 
facilities in Tennessee whose interests are similar to 
movants, may benefit financially from successful appeal. 
These are the only publicly owned corporations of which 
counsel is aware but there may be others represented in the state.

IX



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MILDRED LEA LINTON, by her ) 
next friend KATHY ARNOLD, ) 
on her own behalf and on ) 
behalf of all other persons ) 
similarly situated, )

Plaintiff, j
BELLE CARNEY, by her next j 
friend MARY KIMBLE, on her own ) 
behalf and on behalf of all ) 
other persons similarly ) 
situated, )

Plaintiff-Intervenor, j
)

COMMISSIONER OF HEALTH AND )
ENVIRONMENT, STATE OF )
TENNESSEE, )

Defendant, j
ST. PETER VILLA, INC.; j
PRESBYTERIAN HOMES OF TENNESSEE, INC.; ) 
RHA/SULLIVAN, INC.; )
CEDARS HEALTH CARE CENTER, INC.; )
McKENDREE VILLAGE, INC.; )

Defendant-Intervenors/ )
Appellants. )

NOS. 93-6142/6143/ 
6144/6146/6147 
(District Court No. 
3:87-0941)

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, McKendree Village, Inc. makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly ownedcorporation? No

x



2. Is there a publicly owned corporation, not a party to the
appeal, that has a financial interest in the outcome? Yes

If the answer is YES, list below the identity of the parent
corporation or affiliate and the relationship between it and
the named party:

If the answer is YES, list the identity of such corporation 
and the nature of the financial interest:
Hillhaven Corporation 
Beverly Enterprises 
National Health Corp. L.P.
Diversicare Corporation
Health Care and Retirement Corporation
National Heritage, Inc.
These corporations, to the extent that they may have nursing 
facilities in Tennessee whose interests are similar to 
movants, may benefit financially from successful appeal. 
These are the only publicly owned corporations of which 
counsel is aware but there may be others represented in the 
state.

l/S'/L- ~ lyj
(Signature of Counsel; ' (Date;

xi



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MILDRED LEA LINTON, by her )
next friend KATHY ARNOLD, )
on her own behalf and on )
behalf of all other persons )
similarly situated, )

Plaintiff, j
)BELLE CARNEY, by her next )

friend MARY KIMBLE, on her own )
behalf and on behalf of all )
other persons similarly )
situated, )

Plaintiff-Intervenor, )
)

COMMISSIONER OF HEALTH AND )
ENVIRONMENT, STATE OF )
TENNESSEE, )

Defendant, j
ST. PETER VILLA, INC.; j
PRESBYTERIAN HOMES OF TENNESSEE, INC.; ) 
RHA/SULLIVAN, INC.; )
CEDARS HEALTH CARE CENTER, INC.; )
McKENDREE VILLAGE, INC.; )

Defendant-Intervenors/ j
Appellants. )

NOS. 93-6142/6143/ 
6144/6146/6147 
(District Court No. 
3:87-0941)

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, Cedars Health Care Center, Inc. makes 
the following disclosure:

1. Is said party a subsidiary or-affiliate of a Dublicly ownedcorporation? No

xii



Is there a publicly owned corporation, not a party to the 
appeal, that has a financial interest in the outcome? Yes

If the answer is YES, list below the identity of the parent
corporation or affiliate and the relationship between it andthe named party:

If the answer is YES, list the identity of such corporation 
and the nature of the financial interest:
Hillhaven Corporation 
Beverly Enterprises 
National Health Corp. L.P.
Diversicare Corporation
Health Care and Retirement Corporation
National Heritage, Inc.
These corporations, to the extent that they may have nursing 
facilities in Tennessee whose interests are similar to 
movants, may benefit financially from successful appeal. 
These are the only publicly owned corporations of which 
counsel is aware but there may be others represented in the state.

jjU iH <*—  / h - -  by /•*"*• r/..n Jf!If , 191 y
(Signature of Counsel) (DateO *

- xiii



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MILDRED LEA LINTON, by her )
next friend KATHY ARNOLD, )
on her own behalf and on )
behalf of all other persons )
similarly situated, )

)Plaintiff, )
)BELLE CARNEY, by her next )

friend MARY KIMBLE, on her own )
behalf and on behalf of all )
other persons similarly )
situated, )

Plaintiff-Intervenor, j
)

COMMISSIONER OF HEALTH AND )
ENVIRONMENT, STATE OF )
TENNESSEE, )

Defendant, j
ST. PETER VILLA, INC.; )
PRESBYTERIAN HOMES OF TENNESSEE, INC.; ) 
RHA/SULLIVAN, INC.; )
CEDARS HEALTH CARE CENTER, INC.; )
McKENDREE VILLAGE, INC.; )

Defendant-Intervenors/ j
Appellants. )

NOS. 93-6142/6143/ 
6144/6146/6147 
(District Court No. 
3:87-0941)

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, RHA/Sullivan, Inc. makes the followinq disclosure: ^

Is said party a subsidiary or affiliate of a publicly ownedcorporation? No

xiv



2. Is there a publicly owned corporation, not a party to the
appeal, that has a financial interest in the outcome? Yes

If the answer is YES, list below the identity of the parent
corporation or affiliate and the relationshiD between it and
the named party:

If the answer is YES, list the identity of such corporation 
and the nature of the financial interest:
Hillhaven Corporation 
Beverly Enterprises 
National Health Corp. L.P.
Diversicare Corporation
Health Care and Retirement Corporation
National Heritage, Inc.
These corporations, to the extent that they may have nursing 
facilities in Tennessee whose interests are similar to 
movants, may benefit financially from successful appeal. 
These are the only publicly owned corporations of which 
counsel is aware but there may be others represented in the state.

xv



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MILDRED LEA LINTON, by her 
next friend KATHY ARNOLD, 
on her own behalf and on 
behalf of all other persons 
similarly situated,

Plaintiff,
BELLE CARNEY, by her next 
friend MARY KIMBLE, on her own 
behalf and on behalf of all 
other persons similarly 
situated,

Plaintiff-Intervenor, 
v.
COMMISSIONER OF HEALTH AND 
ENVIRONMENT, STATE OF 
TENNESSEE,

Defendant,
ST. PETER VILLA, INC.; 
PRESBYTERIAN HOMES OF TENNESSEE, 
RHA/SULLIVAN, INC.;
CEDARS HEALTH CARE CENTER, INC.; 
McKENDREE VILLAGE, INC.;

Defendant-Intervenors/ 
Appellants.

)
)
)
)
)
)
)
)
)
)
)
)
) NOS. 93-6142/6143/
) 6144/6146/6147
) (District Court No.
) 3:87-0941)
)
)
)
)
)
)
)
)
)INC.; )
)
)
)
)
)
)

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, Presbyterian Homes of Tennessee, Inc. 
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned

corporation? No

xvi



Is there a publicly owned corporation, not a party to the 
appeal, that has a financial interest in the outcome? Yes

If the answer is YES, list below the identity of the parent
corporation or affiliate and the relationship between it and
the named party:

If the answer is YES, list the identity of such corporation 
and the nature of the financial interest:
Hillhaven Corporation 
Beverly Enterprises 
National Health Corp. L.P.
Diversicare Corporation
Health Care and Retirement Corporation
National Heritage, Inc.
These corporations, to the extent that they may have nursing 
facilities in Tennessee whose interests are similar to 
movants, may benefit financially from successful appeal. 
These are the only publicly owned corporations of which 
counsel is aware but there may be others represented in the state.

xvii



I. JURISDICTIONAL STATEMENT
This case involves claims arising under: 42 U.S.C. § 1983;

the Rehabilitation Act of 1973, 29 U.S.C. § 794; Title VI of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000d et sea.; and Title 
XIX of the Social Security Act, 42 U.S.C. § 1396 et. sea, (the 
"Medicaid Act"). The district court's jurisdiction was therefore 
premised upon 28 U.S.C. § 1331. Defendant-intervenors appeal 
from a final order of the U.S. District Court for the Middle 
District of Tennessee. This Court therefore has jurisdiction 
pursuant to 28 U.S.C. § 1291.

II. STATEMENT IN SUPPORT OF ORAL ARGUMENT 
Appellants hereby request oral argument on this matter. 

Reasons for oral argument include the complexity, importance, and 
novelty of the issues, the statues and regulations of the 
Medicaid program, and the legal and factual analysis in 
connection with Title VI of the Civil Rights Act of 1964.

III. ISSUES PRESENTED FOR REVIEW 
Under Wards Cove Packing Co. v. Atonio. 490 U.S. 642 (1989), 

a plaintiff seeking to establish a disparate impact 
discrimination violation must demonstrate that a facially neutral 
policy caused a significant adverse impact disproportionately 
affecting members of a protected class.

The first question presented in this appeal is whether 
plaintiffs' evidence was sufficient to support the district 
court's disparate impact holding, where (1) it did not compare 
the demographics of nursing home admissions and of qualified 
applicants for nursing home services, and (2) few nursing homes



were affected by the policy challenged and plaintiffs' evidence 
did not link those nursing homes' admissions statistics to that 
policy.

The second question presented is whether the district 
court's remedy was an abuse of discretion where (1) the legal 
predicate underlying that remedy (i.e .. the disparate impact 
violation) is invalid, and (2) even if the disparate impact 
finding were valid, the remedy is not narrowly tailored to the 
specific violations identified by the court and is otherwise 
contrary to federal law.

IV. STATEMENT OF THE CASE AND FACTS 
A. Nature and Course of the Proceedings

On December 9, 1987, plaintiff Mildred Linton ("Linton"), a 
resident of a Tennessee nursing home, brought this class action 
against the Commissioner of the Tennessee Department of Health 
and Environment, ("the Commissioner," "the State" or "TDHE") 
Linton challenged TDHE's policy that permitted a nursing home to 
certify less than all of its available beds for participation in 
Tennessee's Medicaid program (the "Tennessee Certification 
Policy").1 (R. 3: Complaint). Plaintiff-intervenor Belle

The Medicaid program is a cooperative federal-state program 
whereby federal financial assistance may be made available to 
the states for the purpose of furnishing medical assistance 
to indigent individuals meeting certain economic and medical 
eligibility requirements. States are not required to 
participate in Medicaid, but any state which desires to 
participate must have in place a state Medicaid plan approved 
by the Secretary of Health and Human Services ("Secretary" 
and "HHS"). This state plan must meet the requirements of 42 
U.S.C. § 1396a, and the state must agree to administer its 
Medicaid program in accordance with the Medicaid statute, the

Continued on following page
2



Carney ("Carney") moved to intervene as a plaintiff. (R. 6 : 
Motion to Intervene and Intervenors' Complaint). Linton and 
Carney sought a preliminary injunction barring TDHE from the 
continued enforcement of the Tennessee Certification Policy. (R. 
3: Complaint; R. 6 : Motion to Intervene and Intervenors'
Complaint; R. 13: Motion for Preliminary Injunction).

The district court referred the case to a magistrate judge. 
On March 18, 1988, the magistrate judge released a Report and 
Recommendation suggesting that plaintiffs' motion for a 
preliminary injunction be granted and that the Commissioner be 
directed to submit a plan to implement a policy of full Medicaid 
certification of nursing homes within 30 days. (R. 33: Report
and Recommendation). In a Memorandum and Order dated October 14, 
1988, the district court granted class certification and adopted 
the Magistrate's Report and Recommendation in part but denied the 
preliminary injunction requested by the plaintiffs. (R. 41: 
Memorandum; R. 42: Order).

On April 20, 1990, the district court issued a Memorandum 
decision which, in summary, held that the Tennessee Certification 
Policy violated the Medicaid Act and Title VI and ordered the 
Commissioner to develop a plan to address the disparate impact on 
minority Medicaid patients' access to qualified nursing home 
care. (R. 55: Memorandum p. 25).

Continued from previous page
terms of its approved state plan, and the implementing 
regulations and policies of HHS. 42 U.S.C. §§ 1396a(a)-(b)and 1396c.

3



On June 1, 1990, the Commissioner submitted a proposed 
remedial plan which was not opposed by, and, indeed, was 
developed in consultation with, the plaintiffs. (R. 57: State
Submission). On July 5, 1990, the district court adopted the 
State's proposed remedial plan (the "Linton Plan"). (R. 69:
Final Order).

On July 30, 1990, six Tennessee nursing homes filed Motions 
to Intervene for Purpose of Appeal (R. 75, 76, 77, 78, 79, 80: 
Movants' Motions to Intervene for Purpose of Appeal) and on 
August 3, 1990, filed a Notice of Appeal for each movant. (R.
83: Movants' Motions to Extend Time for Filing Notices of
Appeal). On August 27, 1990, the district court denied movants' 
Motion to Intervene. (R. 92: Order Denying Motions to
Intervene). This Court reversed the district court's denial of 
intervention on September 4, 1992. Linton v. Commissioner. 973 
F.2d 1311 (6th Cir. 1992) ("Linton I").

In response to Linton I. on October 5, 1992, five of the 
intervenors filed renewed Notices of Appeal of the district 
court's final order in this case on October 5, 1992.2 This Court 
dismissed that appeal on April 12, 1993 on the ground that the 
October 5, 1992 notices of appeal were untimely relative to the 
district court's July 5, 1990 final order. However, the Court 
remanded the action with instructions to intervenors to seek an 
order granting their motions to intervene and docketing their

One of the original intervenors, Brook Meade Health Care 
Center, Inc., was voluntarily dismissed by stipulation due to 
pending bankruptcy proceedings.

4



Intervenors sought such an order on May 10, 1993. (R. 144:
Motion). The parties initially opposed that motion in reliance 
on their own motions, filed May 13, 1993, to modify the Linton 
Plan. (R. 145-48: Responses and Joint Motion). The parties
later submitted revised proposed modifications to the Linton Plan 
and dropped their opposition to intervenors' motion. (R. 151-52: 
Parties' Responses).

On June 21 and June 30, 193, the district court entered 
orders adopting the parties' proposed modifications to the Linton 
Plan. (R. 153: Order; R. 155: Order). Finally, on July 7,
1993, the district court granted intervenors' motion to intervene 
and to docket their prior notices of appeal nunc pro tunc as of 
August 3, 1990. (R. 157: Order).

Plaintiffs then asked this Court to dismiss intervenors' 
appeals in reliance on the modifications to the Linton Plan.
This Court denied that motion on July 19, 1994, noting that (i) 
intervenors could pursue review of the entire Linton Plan, (ii) 
intervenors were permitted to challenge the district court's 
legal conclusions with respect to the alleged Title VI violation, 
and (iii) the legal maneuverings of the parties had the 
appearance of an intentional attempt to shield the Linton Plan 
from appellate review. Linton v. Commissioner. 1994 U.S. App. 
LEXIS 17684 (6th Cir. Jul. 19, 1994), reprinted in Medicare & 
Medicaid Guide (CCH) 1 42,560 ("Linton II").

earlier notices of appeal nunc pro tunc as of August 3, 1990 (the
date they were originally filed). (R. 143: Mandate).

5



B . Statement of Relevant Facts
1. The Nature of Plaintiffs' Claims
Plaintiffs' claims related to a Tennessee policy that 

allowed a nursing home to certify less than all of its licensed 
intermediate care facility ("ICF") beds for participation in the 
Medicaid program.3 Plaintiffs' challenges to the Tennessee 
Certification Policy fell into two classes: (1) claims arising
under the Medicaid Act;4 and (2) civil rights claims under Title

3 Prior to the nursing home reform provisions of the Omnibus 
Budget Reconciliation Act of 1987 ("OBRA 1987"), P.L. No. 100- 
203, which were generally effective October 1, 1990, federal law 
recognized distinctions between skilled nursing facilities
("SNFs") and ICFs. See 42 U.S.C. §§ 1396d(a)(4)(A), -(a)(15), 
-(d), -(f), and -(i) (1982). OBRA 1987 eliminated these
distinctions and created a single category of "nursing 
facilities" ("NFs"). 42 U.S.C. § 1396r(a). Because plaintiffs'
suit was initiated prior to the effective date of OBRA 1987 and 
because the evidence presented relates to SNF and ICF services, 
we will generally use those terms rather than the current term, 
"NF" where the distinction is meaningful in the context of this 
case. Prior to OBRA 1987, states were required to include SNF 
services in their Medicaid plans and had the option of furnishing 
ICF services. See 42 U.S.C. § 1396a(a)(10)(A) (1982). At all
relevant times, Tennessee's Medicaid program included both SNF 
and ICF services. An institution or a distinct part of an 
institution could participate as an SNF or ICF. See 42 C.F.R. §§ 
440.40 (a) (ii) , 440.150(d), and 442.2 (1986). Nursing homes were 
not required to participate in the Medicaid program as SNFs or 
ICFs, but, if they did, they had to comply with a series of 
federal and state requirements. See 42 C.F.R. § 442.200 et sea. 
(1987). State Medicaid programs were principally responsible for 
"certifying" that a nursing home (or its distinct part) met the 
Medicaid participation requirements.
4 Plaintiffs asserted that the Tennessee Certification Policy 
violated 42 U.S.C. §§ 1396a(a)(33) (relating to survey and 
certification of providers for participation in Medicaid),
1396a(a)(1) and (a)(5) (requiring states to administer their 
Medicaid programs through a "single state agency" on a statewide 
basis), 1396a(a)(30) (mandating programs to prevent unnecessary 
utilization of services and requiring payments to be sufficient 
to enlist enough providers to ensure minimum levels of access to 
care for Medicaid beneficiaries), 1396a(a)(10) (establishing

Continued on following page
6



VI, the Rehabilitation Act, and the Equal Protection Clause of 
the Fourteenth Amendment. (R. 3: Complaint, at pp. 17-20).

The state's principal defense to plaintiffs' Medicaid Act 
claims was that the Tennessee Certification Policy was authorized 
by federal law as a form of "distinct part" certification, 
whereby a health care institution may have less than its entire 
facility participate in the Medicaid program as a SNF or ICF.
(R. 21: State's Opposition to Preliminary Injunction, at pp. 7-
14). See 42 C.F.R. §§ 440.40(a)(ii), 440.150(d), and 442.2 
(1986). Plaintiffs countered that the Tennessee Certification 
Policy did not meet federal standards for distinct part 
certification, and that federal law did not authorize distinct 
part certification of ICFs. (R. 36: Pis.' Response to
Magistrate's Report, at pp. 9-11).

Although the district court found that both the Tennessee 
Certification Policy did not meet federal distinct part standards 
and made conclusory holdings with respect to a number of 
plaintiffs' other Medicaid Act claims (R. 55: Memorandum, at pp.
15-19, 23-24), only plaintiffs' Title VI claims -- and the relief 
the district court ordered with respect to those claims -- are at 
issue in this appeal. It bears note, however, that: (1) this
Court subsequently ruled that there is no cause of action to 
enforce several of the Medicaid Act claims on which the district

Continued from previous page
minimum standards concerning the amount, duration and scope of 
medical assistance), 1396a(a)(19) (requiring the state to 
administer the Medicaid program in the "best interests of 
recipients"), and 1396a(a)(8) (requiring the state to make care 
and services available with "reasonable promptness").

7



court entered judgment for plaintiffs, see Cook v. Hairston. 735
F. Supp. 239, 245-46 (S.D. Ohio 1990), aff'd . 948 F.2d 1288 (6th 
Cir. 1991) (dismissing "reasonable promptness" and "best 
interests" claims); (2) the Medicaid Act itself does not prohibit
nursing homes from considering the payment source of an applicant 
when making admissions decisions, see infra; and (3) the relief 
ordered by the district court was not tailored to address any 
cognizable, limited Medicaid Act violations.5 At this juncture, 
this Court need not address such errors, because the Linton Plan 
was clearly predicated on the district court's Title VI holding. 
Thus, to the extent that this Court reverses that holding, the 
district court can reconsider its Medicaid Act holdings and any 
appropriate remedy at that time.

5 Intervenors also have serious doubts as to the 
enforceability of other provisions of the Medicaid Act (i.e .. the 
"single state agency" and "statewide applicability" requirements) 
on which the district court entered judgment for plaintiffs, as 
well as serious reservations as to the district court's rulings 
on the merits with respect to the "equal access" and "amount, 
duration, and scope" claims. For example, although the equal 
access provision by its terms governs the adequacy of payment 
rates, see 42 U.S.C. § 1396a(a)(30)(A), plaintiffs limited their 
challenge to the Tennessee Certification Policy and never 
addressed the adequacy of the payment rates. See Gorka v. 
Sullivan, No. IP 93-1278C (S.D. Ind. Jul. 29, 1994); Sobley v. 
Smoley, 1994 WL 271976 (E.D. Cal. 1994) (holding that equal 
access provision does not amount to a general guarantee of 
access). Similarly, those cases that enforced the "amount, 
duration' and scoPe" requirement have typically involved explicit 
limits on coverage of particular items and services rather than 
attenuated challenges to facility certification policies. See, 
e -q-/ Weaver v. Reagan, 886 F.2d 194 (8th Cir. 1989) (restriction 
on coverage of AZT); Curtis v. Taylor, 625 F.2d 645 (5th Cir.), 
modified. 648 F.2d 946 (5th Cir. 1980) (three doctor visit per 
month limit); Roe v. Casey, 464 F. Supp. 487 (E.D. Pa. 1978), 
aff'd 623 F.2d 829 (3d Cir. 1980) (abortions).

8



2. Evidence Concerning Title VI Disparate Impact Claims 
Plaintiffs' Title VI claims did not involve allegations of 

intentional discrimination. (R. 117: Transcript at p. 33).
Instead, plaintiffs limited their claims to disparate impact 
theory. When asked to identify their evidence supporting a 
disparate impact finding, plaintiffs' counsel referred the court 
to various "statistical presentations" in the preliminary 
injunction briefs. (R. 89: Transcript at pp. 143-144).
During the course of the case, plaintiffs presented three other 
types of evidence which conceivably could support their civil 
rights claims: (1) anecdotal evidence of alleged "Medicaid
discrimination"; (2) deposition testimony from Beverly Bass, 
TDHE's director of civil rights enforcement; and (3) 
miscellaneous evidence concerning long term care in Shelby County 
(Memphis).

a. The Parties' Statistical Evidence 
Plaintiffs did not present any expert statistical testimony; 

indeed, they did not present their statistical evidence through 
any witness. Rather, their statistical evidence consisted of a 
variety of "raw data," from which plaintiffs' counsel made 
comparisons and arguments in the briefs.

Essentially, plaintiffs' theory rested upon two general 
propositions: (1) that the Tennessee Certification Policy
reduced the number of ICF beds available to Medicaid nursing home 
patients; and (2) that a policy that placed any limit on the 
number of ICF beds available to Medicaid nursing home patients 
would necessarily have a disparate impact on blacks, because

9



blacks are disproportionately dependent on Medicaid. (R. 14: 
Pis.' Brief in Support of Injunction, at pp. 13-16). With 
respect to the former contention, plaintiffs' evidence showed 
that less than seven percent of ICF beds (2,051 of 31,448) in 
participating facilities statewide were not certified to 
participate in Medicaid. (R. 14: Pis.' Brief in Support of
Injunction, at p. 12; R. 21a: First Stipulation, Tab 21). With
respect to their latter contention, plaintiffs offered 1980 
census data that showed that a greater percentage of elderly 
Tennessee blacks than of elderly Tennessee whites (41 percent v. 
22 percent) are poor, and that blacks comprised 15.8 percent of 
Tennessee's population but 39.4 percent of Tennessee Medicaid 
beneficiaries. (R. 14: Pis.' Brief in Support of Injunction, at
pp. 16-17; R .21a: First Stipulation, Tabs 12-14).

Obviously, none of these statistics demonstrates a racial 
disparity in nursing home admissions. Plaintiffs therefore 
offered additional statistical comparisons in an effort to make 
the required disparate impact showing. Plaintiffs' principal 
statistical comparison in this regard related to the percentage 
of total Tennessee Medicaid beneficiaries (all services) that 
were black (39.4 percent) and the percentage of Tennessee 
Medicaid beneficiaries receiving SNF and ICF benefits who were 
black (15.4 percent). (R. 14: Pis.' Brief in Support of
Injunction, at 17; R. 21a: First Stipulation, Tab 14). Further,
plaintiffs attempted to argue that the Tennessee Certification 
Policy, even though it applied to both Medicaid SNF and ICF beds, 
was the cause of the alleged disparity insofar as 32.7 percent of

10



Medicaid SNF patients were black (comparable to the percentage of 
black Medicaid beneficiaries overall), but only 13.6 percent of 
Medicaid ICF patients were black.6 (R. 14: Pis.' Brief in
Support of Injunction, at 18; R. 21a: First Stipulation, Tab
14). Finally, plaintiffs offered statistics from a single county 
-- Shelby County (Memphis) -- to the effect that 5.9 percent of 
elderly whites resided in nursing homes and 3.7 percent of 
elderly blacks resided in nursing homes. (R. 22: Bass 
Deposition, Ex. 10, at p. 15).

The State offered its own statistical comparisons, many of 
which were based on the same data plaintiffs relied upon. First, 
the State argued that plaintiffs' evidence concerning the 
percentage of total Medicaid beneficiaries who were black and the 
percentage of Medicaid SNF and ICF beneficiaries who were black 
did not compare the correct groups for purposes of disparate 
impact analysis. Instead, defendant argued that the proper 
comparison was between the percentage of Tennesseans over 65 who 
were black (15.8 percent) and the percentage of Tennessee 
Medicaid SNF and ICF residents who were black (15.4 percent). 
(Defs.' Proposed Findings, at 18-19; R. 21a: First Stipulation,
Tabs 13-14).

Second, the State offered statistical comparisons to 
demonstrate that there was no causal link between the Tennessee 
Certification Policy and racial minorities' representation in

6 At the same time, however, plaintiffs claimed that blacks 
had greater needs for more intensive health services such as SNF 
services. (R. 22: Bass Deposition at p. 77).

11



nursing homes.^ Specifically, defendant's statistics showed 
that:

° Only 31 of 95 counties had any nursing homes that were 
not fully certified;

° In the 31 counties that had nursing homes that did not 
certify all of their beds, the percentage of black SNF 
and ICF residents equalled or exceeded the percentage 
of elderly blacks in the general population over 65 in 
17 counties;

° Of the remaining 14 counties with a percentage of black 
SNF and ICF residents less than the percentage of 
elderly blacks in the county, only five of those 
counties had a "shortfall" of over three percent; and

° The county with the largest percentage "shortfall" had 
only one nursing home, in which only one of 140 beds 
was not certified for Medicaid.

(Defs. Proposed Findings, at 21-22; R. 22: Bass Deposition, Ex.
8; R. 14: Pis.' Brief in Support of Injunction, Ex. A).
Further, defendant offered an additional comparison of the 28 
counties with percentage deviations in excess of three percent 
(positive or negative) between black SNF and ICF representation 
and elderly black county population, which showed that:

° Only six counties had a variation (positive or
negative) in excess of five percent, and four of those 
six counties' nursing homes were fully certified;

° 16 counties had a percentage of blacks in certified
nursing homes greater than the percentage of elderly 
blacks in the county, while only 11 had black certified 
nursing home percentages below that of the county (one 
county did not have a nursing home);

° Of the 11 counties with "shortfalls" in black nursing 
home residents, six of those counties' nursing homes 
were fully certified; and

' The State also argued that "self selection" tendencies of 
blacks (e.g., preferences for family or boarding home care) may 
account for any disparities in NF resident percentages.

12



o In two of the remaining five counties, only 9 of 499 
ICF beds were not certified.

(Defs.' Proposed Findings, at 23-25; R. 22: Bass Deposition, Ex.
8; R. 14: Pis.' Brief in Support of Injunction, Ex. A).

b . Anecdotal Evidence
In addition to this statistical evidence, plaintiffs offered 

anecdotal evidence in the form of "declarations" and "verified 
complaints." These materials did not generally relate to racial 
disparities, however. Rather, they related to the more general 
issue of Medicaid recipients' experiences with SNF and ICF 
services; in many cases, they consisted of nothing more than the 
opinions of various long term care ombudsmen.8

c. Testimony of Beverly Bass
Plaintiffs cited, at various times, portions of Ms. Bass' 

deposition in support of their claims. Among other things, 
plaintiffs noted Ms. Bass' agreement with plaintiffs' counsel's 
statements concerning the generally poorer health status of 
minorities relative to whites, her belief that some nursing homes 
prefer private paying patients to Medicaid patients, and her 
opinion (unconnected with any statistics or any particular policy 
challenged by plaintiffs) that racial disparities in Shelby 
County nursing homes were comparable to those that might be found

See R. 5: Anthony Declaration; R. 6 : Carney Complaint; R.
10: Sullivan Declaration; R. 11: Phillips Declaration; R. 21a:
Doe Complaint, Tab 1; R. 21a: Bridgeman Declaration, Tab 15; R.
21a: Morgan Declaration, Tab 16; R. 21a: Bean Affidavit, Tab
17; R. 24: Estille Declaration; R. 28: Pritchard Declaration;
R. 37: Lewis Declaration.

13



in other areas of the state. (R. 22: Bass Deposition, at pp. 8,
10, 14, 20, 77).

d. Shelby County Information
Finally, plaintiffs alluded to certain anecdotal information 

relating to Shelby County. Most of this "evidence" consisted of 
the opinions of various speakers at a "public forum" on minority 
access to long term care in Shelby County. (R. 22: Bass
Deposition, Ex. 10). Among other things, plaintiffs cited Shelby 
County information suggesting that nursing homes tended to be 
predominantly "white" while boarding homes tended to be 
predominantly "black." (R. 22: Bass Deposition, Ex. 10, at pp.
18-19) .

It bears note, however, that the State's operation of the 
Medicaid nursing home program in Shelby County was already 
operating under a consent decree prior to this case. (R. 21a: 
First Stipulation, Tab 11). The decree resulted from a civil 
rights challenge to nursing home referral practices in Shelby 
County. Bed certification issues were not raised in that 
proceeding, however.

3. The District Court's Order and Remedial Plan
The district court's opinion did not contain any discussion 

of the standards for evaluating disparate impact claims. 
Nevertheless, the district court entered factual findings 
concerning the disparate impact claims premised upon the notion 
that a policy limiting the amount of nursing home beds available 
to Medicaid patients will disproportionately affect blacks 
because of higher poverty rates among blacks. (R. 14: Pis.'

14



Brief in Support of Injunction, at pp. 15-16). More 
specifically, the court found that: (1) blacks comprise 39.4
percent of the entire Medicaid population receiving all services 
but 15.4 percent of the Medicaid patients in nursing homes; (2) 
the health status of blacks is generally poorer than that of 
whites; and (3) nursing homes were primarily occupied by whites 
while "boarding homes" (which are not certified under the 
Medicaid program) were primarily occupied by blacks. (R. 55: 
Memorandum at 14-15) .

Having found that these facts were sufficient evidence of a 
disparate impact, the district court rejected the State's attempt 
to "justify" the impact on the grounds of "self selection 
preferences."9 The district court therefore ordered the State to 
submit a remedial plan to redress the alleged disparate impact.
(R. 55: Memorandum, at 21-22).

The Linton Plan ultimately adopted by the district court 
represented an agreement between the State and the plaintiffs.
(R. 57: State Submission). It contains three principal
features. First, the court eliminated the Tennessee 
Certification Policy found to be an illegal deviation from 
appropriate distinct part certification by requiring that all 
nursing homes participating in the Tennessee Medicaid program 
certify all of their ICF beds.

The State's "self selection" defense can more accurately be 
characterized as an attack on causation than as a justification defense.

15



Second, the Linton Plan required "first-come, first-served" 
admissions to nursing homes from a single waiting list. Any 
person making more than a casual inquiry (whether by phone, mail, 
or in person) concerning admission to a nursing home must be 
considered an "applicant" and immediately be placed upon the 
nursing home's waiting list. There are no requirements that the 
applicant take any steps to show that they are medically or 
financially eligible for nursing home admission in order to be 
placed on the waiting list. Admission to the nursing home 
generally must then be made on a first-come, first-served basis 
from the waiting list. There are no provisions for refusing 
admission to an unqualified person, but there are limited 
exceptions from the first-come, first-served admissions process 
based on medical need and emergency placement considerations. 
Further, there are no exceptions based on payor source, 
preexisting admissions contracts, diagnosis, religion, or level 
of care. (R. 57: State Submission, Collective App. B).

Third, the district court instituted a series of punitive 
measures designed to prevent or hamper nursing homes from 
withdrawing from participation in the Medicaid program. If a 
facility decides to withdraw from participation, it must notify 
the state, its patients, and the persons on the waiting list. 
Existing Medicaid patients must be informed of their right to 
remain in the facility, and private paying patients must be 
informed that they will have fewer rights in a non-Medicaid 
facility. The facility may not withdraw from the Medicaid 
program, and must continue to meet Medicaid requirements, until

16



the last Medicaid patient has died or left the facility 
voluntarily.10 Finally, in addition to these "lock-in" 
provisions, the nursing home is also "locked out" from Medicaid 
participation for a period of two years from the date of 
discharge of its last Medicaid patient, unless it revokes its 
decision to terminate participation within thirty days of its 
original notice of its intention to terminate its participation. 
(R. 57: State Submission, Collective App. B).

V. SUMMARY OF ARGUMENT
The district court's disparate impact finding is clearly 

erroneous. First, plaintiffs did not establish a statistically 
significant, cognizable disparity because, contrary to Wards 
Cove's principles, they did not compare the demographics of 
interested and qualified applicants for nursing home admissions 
with those of persons actually admitted to nursing homes.
Second, even if plaintiffs' evidence sufficiently showed the 
requisite disparity, it did not establish any causal link between 
the Tennessee Certification Policy and that disparity. On the 
other hand, the State's evidence demonstrated that no cognizable 
disparity existed and that there was no causal link between 
racial minorities' access to nursing homes and the Tennessee 
Certification Policy.

In light of the fact that the district court's disparate 
impact finding was erroneous, the Linton Plan amounts to an abuse 
of discretion. First, its remedies go well beyond what is

As this Court is aware from Linton II. the district court's 
June 30, 1993 order modified these "lock-in" provisions slightly.

17



reasonably necessary to address any cognizable Medicaid Act 
violations. Second, its "lock-in" and "lock-out" provisions are 
inconsistent with the voluntary nature of the Medicaid program 
and impair nursing homes' existing Medicaid participation 
contracts.

VI. ARGUMENT
A. The District Court's Finding of a Violation of Title VI Is

Clearly Erroneous__________________________________________
1. Standard of Review
A district court's factual findings in a disparate impact 

case are subject to a "clearly erroneous" standard of appellate 
review. Scales v. J.C. Bradford & Co.. 925 F.2d 901, 907 (6th 
Cir. 1991). "[A] finding is 'clearly erroneous' when, although
there is evidence to support it, the reviewing court on the 
entire record is left with the definite and firm conviction that 
a mistake has been made." United States v. United States Gypsum 
Co•, 333 U.S. 365, 395 (1948). The legal implications of factual 
findings in disparate impact cases, on the other hand, may be 
reviewed de novo. See Elston v. Talladega Countv Bd. of Educ 
997 F. 2d 1394, 1405 (11th Cir. 1993)..

2. The District Court's Disparate Impact Holding Is
Erroneous_____

Plaintiffs principally argued that the state's policies and 
practices with respect to the certification of nursing home beds 
to participate in .the program as distinct part ICFs fostered 
discrimination against Medicaid beneficiaries, and thereby had a 
disparate impact upon racial minorities' access to Medicaid 
services, in violation of Title VI. Title VI provides that:

18



No person in the United States shall, on the ground of 
race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be 
subjected to discrimination under any program or 
activity receiving Federal financial assistance.

42 U.S.C. § 2000d. States participating in the Medicaid program
qualify as entities receiving federal financial assistance under
Title VI. See 45 C.F.R. Part 80, App. A. See also 42 C.F.R. §§
430.2 and 489.10(a)(2).

In the context of companion federal civil rights laws 
prohibiting employment discrimination (i.e.. Title VII of the 
Civil Rights Act, 42 U.S.C. § 2000e et sea.). federal courts have 
held that plaintiffs may proceed under either a "disparate 
treatment" or a "disparate impact" theory. Under a disparate 
treatment theory, the plaintiff must prove intentional 
discrimination; under a disparate impact theory, no intent to 
discriminate need be shown if the plaintiff can demonstrate that 
a specific policy caused a disparate adverse effect on a 
protected class. See Griggs v. Duke Power Co.. 401 U.S. 424, 432 
(1971).11

In Wards Cove Packing Co. v. Atonio. the Supreme Court 
explained a plaintiff's evidentiary burdens in disparate impact

11 In Guardians Ass'n v. Civil Service Comm'n. 463 U.S. 582 
(1983), the Supreme Court considered whether a plaintiff may sue 
under Title VI for alleged unintentional, disparate impact 
discrimination. No single opinion commanded a majority of the 
court. However, seven Justices agreed that Title VI itself 
reached only cases of intentional discrimination. 463 U.S. at 
610-11, 612, and 642. On the other hand, five justices agreed 
that disparate impact discrimination could be redressed through 
agency implementing regulations. Id. at 584, 623 n.15, and 645. 
See Alexander v. Choate. 469 U.S. 287, 292 (1984). In their 
complaint, plaintiffs alleged disparate impact violations of HHS' 
Title VI implementing regulations.

19



cases. These standards have been applied by this Court in the
context of various anti-discrimination statutes. See. e .g .. 
Police Officers for Equal Rights v. City of Columbus. 916 F.2d 
1092, 1096 (6th Cir. 1991) (Title VII claims); Abbott v. Federal 
Forge. Inc.. 912 F.2d 867, 872-76 (6th Cir. 1990) (Age 
Discrimination in Employment Act claims). See also Elston. 997 
F.2d at 1407 n.14 (Title VI disparate impact claims governed by 
Title VII standards).

In Wards Cove, the Court held that, in order to make out a 
prima facie case, a plaintiff must first identify a specific 
practice or policy alleged to have resulted in discriminatory 
effects. As the Court noted, "disparate-impact cases have always 
focused on the impact of particular . . . practices on . . .
opportunities for minorities." 490 U.S. at 656.

Second, the plaintiff must produce evidence of a 
statistically significant disparity. See id. at 650-55. In 
Wards Cove, the Court stressed that statistical comparisons can 
only support a disparate impact finding if they involve a 
demographic comparison of the proper groups. .Id. Otherwise, a 
defendant's only practicable option would be to adopt racial 
quotas, "a result that Congress and this Court have repeatedly 
rejected in the past." Id. at 653.

Third, the plaintiff must produce narrowly tailored 
statistical evidence to show that the specific challenged policy 
caused the disparity. Wards Cove. 490 U.S. at 657. As the Court 
noted,

20



Just as an employer cannot escape liability under Title 
VII by demonstrating that, "at the bottom line," his 
work force is racially balanced . . ., a Title VII
plaintiff does not make out a case of disparate impact 
simply by showing that, "at the bottom line," there is a 
racial imbalance in the work force. As a general 
matter, a plaintiff must demonstrate that it is the 
application of a specific or particular employment 
practice that has created the disparate impact under 
attack.

Id. at 656-57 (citing Connecticut v. Teal. 457 U.S. 440, 450 
(1982)).12

Assuming that plaintiffs meet this three-part prima facie 
burden, Wards Cove then requires a defendant to produce 
"justification" evidence that the challenged practice "serves, in 
a significant way, the legitimate employment goals of the 
employer." Id. at 659. Plaintiffs would bear the burden of 
persuasion on this issue, however. Alternatively, if the 
plaintiffs were unable to disprove the "justification" defense, 
they could still prevail if they could persuade the fact finder 
that alternative practices could serve the defendant's legitimate 
interests equally as well, without the undesirable racial effect. 
Id. at 659-61.13

The Court further noted that "liberal civil discovery rules 
give plaintiffs broad access to employers' records in an effort 
to document their claims." 490 U.S. at 657.

As part of the Civil Rights Act Amendments of 1991, P.L. No. 
102-166, Congress amended Title VII to modify the Wards Co v p ' 
holding with respect to the justification stage of a disparate 
impact proceeding. Specifically, the 1991 Amendments allocate 
the burden of production and persuasion on the justification 
defense to the defendant. See 42 U.S.C. § 2000e-2(k)(1)(A)(i). 
They preserve the "less restrictive alternative" option for the 
plaintiff, however. See id. § 2000e-2(k)(1)(A)(ii). To our 
knowledge, no court has addressed how the amendments affect Title VI cases.

21



Despite the fact that the Supreme Court decided Wards Cove
over ten months prior to the district court's decision, the 
entire record in this case is devoid of any reference by either 
the parties or the district court to Wards Cove's disparate 
impact standards. The district court's failure to take 
cognizance of Wards Cove's admonitions resulted in a finding of 
disparate impact discrimination which cannot be squared with the 
legal requirements for disparate impact cases.

a. Plaintiffs Failed to Show a Statistically 
Significant Disparity____________________

Plaintiffs complied with the first requirement of Wards Cove 
by specifically identifying the Tennessee Certification Policy as 
the challenged practice. However, plaintiffs failed to submit 
sufficient evidence establishing the next element of their prima 
facie case, i.e., a significant statistical disparity. The 
district court's reliance on plaintiffs' evidence, therefore, 
amounted to clear error.

(1) Plaintiffs and the District Court Failed to 
Compare the Proper Groups____________ _____

The district court's disparate impact holding was premised 
on its finding that blacks comprised 39.4 percent of Tennessee's 
total Medicaid beneficiaries, but only 15.4 percent of 
Tennessee's Medicaid beneficiaries receiving NF services. (R.
55: Memorandum, at p . 14). That comparison is wholly
insufficient to support a finding of disparate impact.

In Wards Cove, the Supreme Court held in the employment 
context that it is the "comparison . . . between the racial
composition of the qualified persons in the labor market and the

22



persons holding at-issue jobs . . . that generally forms the
proper basis for the initial inquiry in a disparate impact case." 
490 U.S. at 650-51. In that case, the plaintiffs, a class of 
nonwhites, held unskilled "cannery" positions in an employer's 
salmon-canning operations. Plaintiffs argued that the fact that 
the employer's skilled and unskilled "noncannery" positions were 
predominantly held by whites supported a finding of disparate 
impact with respect to a number of the employer's hiring and 
promotion practices. .Id. at 647.

The Court pointed out several fallacies in the plaintiffs' 
argument. First,

with respect to the skilled . . . jobs at issue here,
the [unskilled] work force in no way reflected "the pool 
of qualified job applicants" or the "qualified 
population in the labor force." Measuring alleged 
discrimination in the selection of accountants, 
managers, boat captains, electricians, doctors, and 
engineers -- and the long list of other "skilled" . . . 
positions found to exist by the District Court -- . . . 
by comparing the number of nonwhites filling [unskilled] 
positions is nonsensical.

Id. at 651. In other words, the Court stressed that a proper 
statistical comparison must take into account the qualifications 
of the applicants. See, e.q ., Cerrato v. San Francisco Community 
College Dist., 26 F.3d 968 n.21 (9th Cir. 1994); McNairn v. 
Sullivan, 929 F.2d 974, 979 (4th Cir. 1991) (where 28 percent of 
government "GS-3" employees were minorities but only 16 percent 
of those promoted to "GS-4" were minorities, evidence was 
insufficient because of a failure to consider which GS-3 
employees were qualified for GS-4 positions).

23



f Second, the Wards Cove Court rejected plaintiffs' argument
that a disparity between the racial composition of unskilled
cannery workers and unskilled noncannery workers was sufficient:

[I]solating the cannery workers as the potential "labor 
force" for unskilled noncannery positions is at once 
both too broad and too narrow in its focus. It is too 
broad because the vast majority of these cannery workers 
did not seek jobs in unskilled noncannery positions 
. . . . Thus, the pool of cannery workers cannot be used
as a surrogate for the class of qualified job applicants 
because it contains many persons who have not (and would 
not) be noncannery job applicants. Conversely, if 
respondents proposed to use the cannery workers for 
comparison purposes because they represent the 
"qualified labor population" generally, the group is too 
narrow because there are obviously many qualified 
persons in the labor market for noncannery jobs who are 
not cannery workers.

Id. at 653-54. Wards Cove therefore also stresses that the class 
to be compared to the at-issue positions must be narrowly drawn 
to include only those who are interested in positions. Courts of 
appeals -- including this Court -- have rejected statistical 
comparisons which exclude eligible classes of interested 
applicants. See, e . g . , Lopez v. Laborers Int'l U. Local No. 18. 
987 F.2d 1210, 1215 (5th Cir. 1993); Ortega v. Safeway Stores.
Inc., 943 F.2d 1230, 1245 (10th Cir. 1991) (comparison using only 
laid-off employees seeking rehire to show disparate impact where 
at-issue jobs were available to the general public); Abbott v. 
Federal Forge, Inc.. 912 F.2d at 873-74 (same).

Applying Wards Cove in the context of nursing home 
admissions, the fallacy of the district court's holding is 
apparent. In this case, the proper initial statistical 
comparison would have been between (1̂  the racial composition of 
nursing home residents (or even more ideally, nursing home

24



admissions since many nursing home residents become eligible for 
Medicaid after they enter the facility), and (2) the racial 
composition of unduplicated applicants for admission to nursing 
homes who were in fact in need of nursing home care.14 Despite 
the fact that the record makes clear that TDHE's civil rights 
office maintained applicant waiting list data (R. 22: Bass
Deposition, at pp. 25, 38 & Ex. 5), plaintiffs never offered a 
statistical comparison based on such data.

Plaintiffs' and the district court's comparison between the 
percentage of Medicaid SNF and ICF residents who are black and 
the percentage of all Medicaid beneficiaries who are black is 
"apropos of nothing." Lopez. 987 F.2d at 1213. First, insofar 
as it suggests that the percentage of Medicaid SNF and ICF 
residents who are black should equal the percentage of all 
Medicaid beneficiaries who are black, it erroneously assumes that 
the only applicants to nursing homes are Medicaid beneficiaries. 
In fact, nursing homes are not even required to participate in 
the Medicaid program, and even when they do, they receive 
applications for admission from persons whose care is paid for by 
private monies or insurance, Medicare, Medicaid, and other 
sources.

Second, the district court's comparison erroneously suggests 
that blacks should use all Medicaid services at approximately the

14 The term "initial" is used here because, even if such data 
demonstrated a statistical disparity, plaintiffs would then have 
to demonstrate a causal link between such disparity and 
Tennessee's Certification Policy, the practice that was 
challenged here.

25



same rates. Aside from the fact that there is no testimony to 
that effect in the entire record and the district court itself 
found to the contrary,15 the very nature of the Medicaid program 
belies such an assumption. Medicaid covers an extremely broad 
and diverse range of services. See 42 C.F.R. Part 440. See also 
R. 21a: First Stipulation, Tab 14. At the same time, Medicaid
is not simply a program for the elderly, who are most commonly in 
need of nursing home care. Rather, Medicaid is a program for the 
poor, and therefore covers persons of all ages, whose medical 
needs differ substantially. Thus, a population's use of 
particular Medicaid services will depend on a variety of factors, 
including the relative age, geographical distribution, medical 
needs, and "habits" of health care usage of those included in 
that population.

In short, the statistics that the district court relied upon 
prove nothing more than the fact that black Medicaid recipients 
do not use all Medicaid services to the same degree. That fact 
says nothing about what their expected usage of SNF and ICF 
services should be. The district court's reliance on the portion 
of total Medicaid beneficiaries who are black as an indicator of 
the "appropriate" level of black Medicaid SNF and ICF residents 
is therefore analogous to the Wards Cove plaintiffs' attempt to 
compare the racial composition of unskilled cannery workers and 
unskilled noncannery workers: it is too broad in the sense that

15 The district court explicitly found that blacks generally 
have more severe health problems, which might suggest a higher 
use of emergency services. (R. 55: Memorandum, at p . 14).

26



not all Medicaid beneficiaries need or seek to obtain SNF and ICF 
services, and it is too narrow in the sense that persons other 
than Medicaid beneficiaries need or seek to obtain SNF and ICF 
services.

Similarly, plaintiffs' statistics comparing the percentage 
of black and white Shelby County residents in nursing homes are 
unavailing. Not only do these statistics fail to consider the 
qualifications and interest levels of the respective populations, 
they are also limited to a single county (Shelby County).
Notably, the State had entered into a consent decree involving 
Title VI violations resulting from nursing home referral 
practices in Shelby County. (R. 36: Pis.' Response to
Magistrate's Report, at p. 15). In light of these prior 
practices, any racial disparities are not surprising. Shelby 
County information therefore cannot be considered representative 
of long term care conditions elsewhere in the state.

Plaintiffs' evidence that blacks' health status is poorer 
and that "boarding homes" in Shelby County tend to be used 
primarily by elderly black persons is similarly insufficient to 
establish a disparate impact. While the former fact (poorer 
health status) might be relevant to determining the proportion of 
NF admissions or residents that one would statistically expect to 
be black, plaintiffs never offered any evidence of what that 
proportion should be. The latter fact (high black boarding home 
population) merely proves, once again, that blacks do not use all 
health care services to the same extent. Moreover, it says 
nothing about expected nursing home usage by blacks. In the

27



absence of a proper statistical comparison that indicates 
expected nursing home usage by blacks, the district court's 
holding must be reversed.

(2) The Record Contains No Evidence Concerning 
the Statistical Significance of Plaintiffs' 
Comparisons___________________

Even if the Court were to find plaintiffs' statistics
meaningful in some general sense, plaintiffs have failed to
satisfy another of their prima facie duties. A statistical
disparity must be significant in order to contribute to
plaintiffs' prima facie case. As this Court has noted,

There are many ways to assess the significance or 
sufficiency of statistical evidence. For instance, a 
defendant may question whether the disparity is great 
enough to create a presumption that it does not result 
from random chance . . . .

Abbott, 912 F.2d at 873. See also Davis v. Yazoo County Welfare 
Dept ■ , 942 F . 2d 884, 889 (5th Cir. 1991); Hill v. Seaboard Coaai- 
Line R. Co.. 885 F.2d 804, 812 n.14 (11th Cir. 1989).

In this case, plaintiffs presented no testimony or other 
evidence concerning the significance of the alleged disparity 
that they raised. Indeed, they presented no testimony whatsoever 
concerning their statistics. Instead, they relied solely on 
interpretations of raw data by their counsel. Arguments of 
counsel cannot substitute as evidence, however, and in the 
absence of other guidance concerning the statistical significance 
of plaintiffs' information, their evidence did not meet or even 
approach Wards Cove's prima facie requirements.

28



(3) The Evidence of Record That Most Closely 
Approaches Wards Cove's Requirements 
Demonstrates That There Is No Apparent 
Statistical Disparity___________________

Although neither party below submitted evidence complying 
fully with Wards Cove's standards, the State used plaintiffs' 
statistical data to demonstrate that 15.8 percent of Tennessee's 
elderly (over-65) population was black, and a comparable level -- 
15.4 percent -- of Tennessee's Medicaid SNF and ICF residents 
were black. (R. 21a: First Stipulation, Tabs 13-14) . This
evidence further belies the Court's finding of a disparate 
impact.

In Wards Cove, the Supreme Court recognized that "perfect" 
comparisons limited solely to qualified and interested applicants 
were not always possible. The Court therefore noted that "where 
'figures for the general population might . . . accurately
reflect the pool of qualified applicants,'. . .we have even 
permitted plaintiffs to rest their prima facie cases on such 
statistics as well." 490 U.S. at 651 n. 6. (quoting Teamsters v. 
United States, 431 U.S. 324, 340 n.20 (1977)). See also Abbott. 
912 F.2d at 873.

The State's use of general population statistics from the 
over-65 age group is admittedly somewhat overbroad, insofar as 
the entire over-65 population does not necessarily need or seek 
nursing home care. Nonetheless, defendant's age criterion 
appears to represent a more accurate proxy for the need for and 
use of nursing home care than plaintiffs' selected criterion, 
Medicaid status. For example, the State's statistics on the age

29



distribution of Medicaid beneficiaries in nursing homes show that 
88.5 percent of those receiving NF care (SNF and ICF) are over 
age 65. (R. 21a: First Stipulation, Tab 14) Further,
plaintiffs themselves cited the percentage of over-65 persons who 
are poor in support of their general theory. (R. 14:
Preliminary Injunction Memorandum, at p. 16; R. 21a: First
Stipulation, Tab 12).

Using defendant's age-based data reveals a mere 0.4 percent 
difference between black representation in the "eligible" 
population and black representation in the "at issue" NF 
placements. In short, defendant's more logical statistical 
analysis reveals what appears to be little or no significant 
disparity in black nursing home representation.

In this case, the only statistics relating even remotely to 
the existence of a disparate impact on nursing home admissions of 
blacks suggest that there is no disparity. This Court therefore 
should reverse the district court's finding of a disparate 
impact. See Pullman-Standard v. Swint. 456 U.S. 273, 292 (1982) 
(remand unnecessary where facts permit only one legal 
conclusion).

(4) Plaintiffs' Anecdotal Evidence Does Not 
Support a Disparate Impact_____________

None of plaintiffs' other evidence establishes a disparate 
impact upon racial minorities. In Gibson v. Frank. 946 F.2d 
1229, 1233 (6th Cir. 1991), this Court recognized that "while 
statistical evidence is not absolutely essential in proving a 
disparate impact case, there must be proof of disparity using the

30



In that case, this Courtproper standards for comparison." 
rejected the plaintiff's claims because he "simply failed to show 
an uneven burden placed upon him or blacks generally." id.

Plaintiffs' anecdotal evidence in this case primarily 
consisted of a variety of "declarations," affidavits, and 
"verified complaints" -- some of which were made in connection 
with a different lawsuit. Of these materials, four represented 
statements of family members of Medicaid beneficiaries seeking NF 
placement (R. 10: Sullivan Declaration; R. 11: Phillips
Declaration; R. 24: Estille Declaration; R. 28: Pritchard
Declaration), five represented opinions of present and former 
long term care ombudsmen concerning the placement of Medicaid 
beneficiaries (R. 5: Anthony Declaration; R. 21a: First
Stipulation, Bridgeman Declaration, Tab 15; R. 21a: First
Stipulation, Morgan Declaration, Tab 16; R. 21a: First
Stipulation, Bean Affidavit; R. 37: Lewis Declaration), and two
were federal court complaints (R. 6: Carney Complaint; R. 21a:
First Stipulation, Tab 1). Of these materials, only two -- 
plaintiff Carney's complaint and Mr. Bean's affidavit from Doe v . 
Mid-South Nursing Home, Inc. -- reflected any circumstances 
related to black individuals. In fact, Ms. Carney ultimately was 
able to secure placement in a NF when she became Medicaid- 
eligible. I® (r . 35. Fourth Stipulation). 16

16 Although the record is not clear with respect to the 
individual discussed in Mr. Bean's affidavit, the affidavit 
suggests the individual also gained admission to a nursing home. 
(R. 21a: First Stipulation, Bean Affidavit, Tab 17 6) .

31



In addition, plaintiffs relied on Ms. Bass' testimony that 
she "thinks" that minorities experience placement difficulties, 
and the materials from the Shelby County public forum. Ms. Bass 
noted, however, that she had not documented any problems on a 
statewide basis. (R. 22: Bass Deposition, at pp. 24, 32)
Further, as noted above, the Shelby County information cannot be 
considered representative of the remainder of the state in light 
of the consent decree involving referral practices in that 
county. In any event, neither Ms. Bass' intuition nor the 
opinions of the speakers at the Shelby County forum can 
substitute for actual evidence of an "uneven burden" upon racial 
minorities, let alone for "proof of disparity under the proper 
standards." Gibson. 946 F.2d at 1233.

b. Plaintiffs' Evidence Fails to Demonstrate Any
Causal Link Between the Policy In Question and Any 
Alleged Disparity________________________

Even assuming, arguendo, that plaintiffs presented 
sufficient evidence of a statistically significant disparity 
affecting racial minorities, the district court's decision is 
still clearly erroneous because there was no evidence 
establishing a causal link between the Tennessee Certification 
Policy and the alleged disparity. To the contrary, the State's 
evidence confirms that there is no causal relationship between 
these two items.

32



(1) Plaintiffs Failed to Offer Adequate Evidence 
Demonstrating a Causal Link Between the 
Tennessee Certification Policy and the 
Alleged Disparity_______________________ _

As the Court noted in Wards Cove. plaintiffs:
Have to demonstrate that the disparity they complain of 
is the result of one or more of the . . . practices that
they are attacking . . ., specifically showing that each
challenged practice has a disparate impact on . . .
opportunities for whites and nonwhites. To hold 
otherwise would result in employers being potentially 
liable 'for the myriad of innocent causes that may lead 
to statistical imbalances . . . .'

490 U.S. at 657 (quoting Watson v. Fort Worth Bank & Trust. 487
U.S. 977, 992 (1988)). Similarly, the Fifth Circuit has stated
that "the plaintiff cannot make out a prima facie disparate
impact claim if the evidence tends to show that even had the
defendant not engaged in the challenged practice, the same
disparate impact would nonetheless have existed." Elston. 997
F.2d at 1407.

Nevertheless, plaintiffs did not make any comparison that 
might establish a causal link between the Tennessee Certification 
Policy and a disparate impact. For example, plaintiffs offered 
no "temporal" analysis of black representation in nursing homes 
before and after the Tennessee Certification Policy. Nor did 
they offer a comparison of what percentage of SNF and ICF 
residents would likely be black "but for" the Tennessee 
Certification Policy.17 Cf. Giltv v. Village of Oak Perk. 919

1/ There is no evidence of record concerning whether the supply 
of NF beds would be adequate to assure plaintiffs' desired (but 
unidentified) level of access "but for" the Tennessee 
Certification Policy. In this vein, it should be noted that, 
even if all of the 2,051 ICF beds not certified in participating

Continued on following page
33



F.2d 1247, 1255 (7th Cir. 1990). Nor did they offer any 
comparison between the racial composition of nursing homes that 
certified less than all of their available beds and the racial 
composition of nursing homes that were fully certified.

Plaintiffs' only statistical evidence bearing even remotely 
upon the issue of causation was their statement that blacks 
constituted 32.7 percent of Medicaid SNF residents and 13.6 
percent of Medicaid ICF residents. (R. 14: Pis.' Brief in
Support of Injunction, at 18; R. 21a: First Stipulation, Tab 14)
In their effort to use this data to establish a causal link with 
the Tennessee Certification Policy, however, plaintiffs 
themselves immediately and repeatedly noted that "Medicare 
explains these very different racial patterns of access to ICF 
and SNF services." (R. 14: Pis.' Brief in Support of
Injunction, at 18; R. 36: Pis.' Response to Magistrate's Report,
at p. 14 n.36) (emphasis added). More specifically, plaintiffs' 
counsel theorized that, since Medicare covers SNF care but not 
ICF care, and Medicare generally pays for SNF care at higher 
rates than the Medicaid program, black Medicaid SNF patients 
obtain access to nursing homes easier than black Medicaid ICF

Continued from previous page
facilities were certified and even if all of those beds were then 
occupied by blacks, the percentage of blacks in ICF beds would 
still have been only 19.2 percent -- well below the comparative 
level (39.4 percent) used by plaintiffs and relied upon by the 
district court to find a disparate impact. (R. 55: Memorandum,
at 14-15.) If nothing else, this highlights the fallacies of 
either or both that comparative level and the idea that Tennessee 
Certification Policy was the cause of the alleged disparity.

34



patients. (R. 14: Pis.' Brief in Support of Injunction, at 18-
19). Thus, plaintiffs themselves acknowledged that the Tennessee 
Certification Policy did not cause their alleged disparities.

Setting aside the fact that plaintiffs' figures once again 
do not compare the proper groups as required by Wards Cove.18 
there is another major defect in plaintiffs' statistics with 
respect to causation. Specifically, it is difficult to fathom 
how allegedly "disparate" black representation with respect to 
Medicaid ICF services19 can be "caused" by the Tennessee 
Certification Policy as applied to ICF beds, where it is 
undisputed that Tennessee nursing homes also employed limited, 
"distinct part" certification with respect to their Medicaid SNF 
beds (i.e., even fewer nursing home beds were certified to 
participate as Medicaid SNF beds). (R. 59: Summary of Licensure
and Participation Status of Tennessee Nursing Home Beds).
Further, plaintiffs argued, and the district court found, that 
blacks generally needed more intensive services. This fact would 
appear to explain any alleged "disparity" between black SNF and 
ICF representation.

(2) Plaintiffs' "Theory of the Case" is
Insufficient to Demonstrate Causation

In the absence of other evidence of causation, plaintiffs 
are left with (and the district court relied upon) their general

18 Plaintiffs' statistics merely prove that blacks use SNF and 
ICF services at different rates.
19 Again, the 13.6 percent ICF participation figure is 
relatively comparable to blacks' 15.8 percent representation in 
the elderly population.

35



"theory of the case" -- that a policy that places any limits on 
the number of NF beds will have a disparate impact on elderly 
blacks, who are poorer than elderly whites and therefore more 
likely to be dependent on Medicaid. (R. 14: Pis.' Brief in
Support of Injunction, at pp. 30-31; R. 22: Bass Deposition, at
12; R. 55: Memorandum, at p . 14).

Plaintiffs' sweeping theory is inapposite, however, because 
every change in the Medicaid program that limits services in any 
manner would amount to a civil rights violation. Such a result 
is plainly inconsistent with the fact that states are allotted 
significant discretion in determining the amount, duration, and 
scope of services to provide under the program. See 42 U.S.C. § 
1396a (a) (10) (A) (establishing mandatory and discretionary 
services). Indeed, plaintiffs' theory of disparate impact is 
strikingly similar to the one advanced by plaintiffs' counsel and 
rejected by a unanimous Supreme Court in Alexander v. Choate. In 
Alexander, plaintiffs' counsel argued that any limitation on the 
number of days of inpatient hospital services covered by the 
Medicaid program would disproportionately affect the handicapped. 
469 U.S. at 290. As the Court noted in that context, nothing 
suggested that Congress "desired to make major inroads on the 
States' longstanding discretion to choose the proper mix of 
amount, scope, and duration limitations on services covered by 
state Medicaid . .. . . " Id. at 307.20

20 Further, the Court made clear that its concerns did not 
relate solely to handicap discrimination when it noted that 
plaintiffs' counsel offered no reason why his reasoning (and the

Continued on following page
36



More directly, plaintiffs' theory is faulty in the context 
of OBRA 1987's provisions regarding distinct part certification 
and NF admissions practices. In OBRA 1987, Congress specifically 
defined NFs to include "an institution or a distinct part of an 
institution" that meets the various participation requirements 
and provides the requisite levels of care. 42 U.S.C. § 1396r(a). 
In other words, Congress explicitly authorized health care 
providers to limit the number of beds available to Medicaid 
beneficiaries. See also 42 C.F.R. § 442.2 (definition of 
"facility" includes distinct part).

Further, despite the numerous requirements imposed upon 
nursing homes wishing to participate in the Medicaid program, the 
Medicaid statute itself does not require them to provide access 
to a particular number of NF beds in the admissions process. 
Section 4211 of OBRA 1987 specified that, regardless of 
residents' sources of payment, nursing homes must have identical 
policies and practices as to transfers, discharges, and the 
provision of services required by the Medicaid plan. 42 U.S.C. § 
1396r(c)(4). See 42 C.F.R. § 483.12(c)(1). No similar 
provisions were enacted with respect to admission practices 
affecting Medicaid beneficiaries.

To the contrary, with respect to admissions practices, OBRA 
1987 merely prohibited nursing homes from: (1) requiring
applicants to waive their rights to Medicaid benefits,

Continued from previous page
administrative burdens accompanying it) would not also have to be 
applied to other groups protected by the statute. Id. at 308.

37



(2) requiring third party guarantees of payment or charging 
amounts in excess of the Medicaid payment as a condition of 
admission, expedited admission, or continued stay, or (3) 
refusing readmission of Medicaid patients who had exceeded any 
bed hold periods for hospitalization or therapeutic leave. See 
42 U.S.C. §§ 1396r(c) (2) (D) (iii) and -(5) (A) ; 42 C.F.R. §§ 
483.12(b)(3) and -(d). More importantly, OBRA 1987 explicitly 
left it to the states to determine whether to adopt stricter 
standards with respect to the admission of Medicaid residents.
See 42 U.S.C. § 1396r(c)(5)(B)(i); 42 C.F.R. § 483.12(d)(4).
Thus, although plaintiffs frequently referred to "Medicaid 
discrimination" in their pleadings below, in fact, nothing in the 
Medicaid statute prohibits a nursing home from considering an 
applicant's source of payment in making admissions decisions.

In any event, plaintiffs' theoretical "evidence" is 
insufficient under Wards Cove and other cases because a causal 
nexus must be drawn between an actual disparity and a specific 
policy -- theoretical constructs will not suffice. As the 
Supreme Court repeatedly emphasized, "Our disparate-impact cases 
have always focused on the impact of particular . . . practices
on . . . opportunities for minorities." 490 U.S. at 656.

(3) The State's Evidence Belies Any Inference of 
Causation___________

The State, on the other hand, made the comparison that 
plaintiffs failed to make. Specifically, the State compared the 
representation of blacks in nursing homes that were fully 
certified and in those that were only partially certified. This

38



evidence further undercuts any suggestion that the Tennessee 
Certification Policy in any way caused an alleged disparity.

First, the evidence demonstrated that relatively few nursing 
homes and nursing home beds even employed the Tennessee 
Certification Policy. Only seven percent of all beds in 
participating ICFs were not certified statewide, and only 31 of 
Tennessee's 95 counties even had nursing homes with such 
uncertified beds. (Defs.' Proposed Findings, at 21-22). This in 
itself suggests that the effect, if any, of the State's policy, 
was extremely limited, and further undercuts plaintiffs' general 
"theory of the case."

Second, defendant analyzed the 31 counties with ICFs that 
did not certify all of their beds to determine if black 
underrepresentation was prevalent in these counties' ICFs 
relative to the elderly black population in the counties.21 The 
State's analysis revealed no consistent underrepresentation, 
suggesting no causal relationship between the Tennessee 
Certification Policy and minority underrepresentation. Among 
other things, the data showed that: (1) 17 of the 31 counties
had minority nursing home populations equal to or greater than 
the minority elderly population of their county;22 (2) of the 14

21 Again, while this comparison is not perfect under Wards 
Cove, it makes reasonable assumptions that age is a better proxy 
for nursing home use than Medicaid eligibility, and that a 
nursing home will generally draw its patients from the county in 
which it is located.
22 Similarly, although defendant did not provide an analysis 
with respect to fully certified counties, the data reflect that a 
full one-third of fully certified counties have minority NF

Continued on following page
39



other counties, the difference in representation percentages was 
less than three percent; and (3) the county with largest 
"shortfall" in minority nursing home representation had only one 
of 140 beds not certified. (Defs.' Proposed Findings, at 21-22).

Third, the State's analysis revealed that nursing home 
minority representation and county elderly minority 
representation are relatively consistent among all counties. 
Here, the data showed that: (1) only 28 counties had a
difference (positive or negative) exceeding three percent; (2) 
only six counties, four of which had fully certified nursing 
homes, had differences (positive or negative) exceeding five 
percent; and (3) of the 11 counties with "shortfalls" of black 
nursing home residents exceeding three percent, six of those 
counties' nursing homes were fully certified and only two of 499 
ICF beds in two other counties were not certified. (Defs.' 
Proposed Findings, pp. 23-25) .

±n short, the State's analysis of fully certified nursing 
homes and nursing homes employing the Tennessee Certification 
Policy demonstrates that there is no statistical correlation 
between that policy and any adverse disparity in racial 
minorities' admissions to nursing homes.

Continued from previous page
populations less than the minority elderly county population.
(R. 22: Bass Deposition, Ex. 8). This evidence suggests that any 
statistical disparities might have resulted regardless of the 
Tennessee Certification Policy and were the consequence of 
factors other than the challenged policy. See Elston. 997 F at 1407.

40



B. The District Court Abused Its Discretion in Adopting the 
Remedies of the Linton Plan_____________________________
1. Standard of Review
A district court's injunctive relief may be overturned if 

the court abused its discretion. Vanguards of Cleveland v. City 
of Cleveland, 753 F.2d 479 (6th Cir. 1985); United States v. City 
of Parma, 661 F.2d 562 (6th Cir. 1981). Under that standard, the 
court must consider whether the decision was based on a 
consideration of the relevant factors and whether the decision 
articulated a rational connection between the facts found and the 
choice made. Ohio Bell Tel. Co. v. F.C.C.. 949 F.2d 864, 872 
(6th Cir. 1991).

In injunction cases, the nature of the violation determines
the scope of the remedy. Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1, 15-16 (1971). In Parma. a case dealing with
the Fair Housing Act, this Court said:

[T]he question for this court to decide is whether it is 
a suitable remedy for the violation which was found to 
exist. As in cases of constitutional violations, courts 
must carefully tailor the remedy in cases of statutory 
violations, limiting it to relief necessary to correct 
the violations.

661 F.2d at 576. See also American Motor Sales Coro, v. Runke. 
708 F.2d 202 (6th Cir. 1983),23

In the case sub judice. the remedies for the violation found 
by the district court were negotiated between the parties and 
approved by the district court. Thus, the remedies have some of 
the attributes of a consent decree. (R. 57: State Submission;
R. 69: Final Order). The Supreme Court has similarly determined
that the limitations on remedial authority also apply when a 
consent decree is entered. In Firefighters Local U. 1784 v.
Stotts, 467 U.S. 561, 576 (1984), the Court held that the 
authority of the district court to adopt a consent decree "comes

Continued on following page
41



2. The Linton Plan Amounts to an Abuse of Discretion
a. The Linton Plan Is Overbroad and Includes Remedies 

Not Related to the Violations_____________________
At the outset, appellants note that, if the district court's 

disparate impact finding were clearly erroneous, the Linton Plan 
would clearly amount to an abuse of discretion because the 
underlying legal predicate for the Court's actions would be 
altered. For example, insofar as the district court's decision 
also appears predicated upon its finding that the State did not 
comply with federal Medicaid distinct part standards, an 
appropriate remedy might be limited to measures designed to bring 
the State into compliance with such standards. Accordingly, if 
this Court overturns the district court's disparate impact 
holding, the Linton Plan should be vacated, the state should be 
enjoined from enforcing the Linton Plan's implementing 
regulations, and this matter should be remanded in order for the 
district court to reconsider the "relevant factors" and legal 
standards and to articulate a new rationale for whatever 
appropriate remedy it may select.

On the other hand, even if the district court correctly 
found that the Tennessee Certification Policy resulted in a 
violation of Title VI, a remand is still appropriate. It is 
undisputed that the Tennessee Certification Policy was not widely 
used and affected only seven percent of the beds in 23 percent of 
the participating facilities in the state. Thus, while a remedy

Continued from previous page
only from the statute which the consent decree is intended to 
enforce not from the parties to the decree."

42



of full certification might be appropriate, the Linton Plan goes 
far beyond what is reasonably necessary and adopts remedies 
unrelated to any statutory violation in the following respects:

° The Linton Plan applies first-come, first-served
admissions with limited exceptions to all facilities 
regardless of their use of the challenged certification 
policy or their past civil rights compliance.

° The Linton Plan eliminates previously recognized
exceptions to first-come, first-served admissions which 
either have no Title VI implications, i.e .. level of 
care and diagnosis preferences, or which are defensible 
as justified by business necessity, i.e .. religious or 
contractual preferences.

Finally, as explained below, the specific "lock-in" and
"lock-out" features of the Linton Plan violate federal law.

b. The "Lock-in" and "Lock-out" Provisions of the 
Linton Plan Violate Federal Laws and 
Constitutional Provisions, Are Not Authorized by 
State Law and Are Inappropriate Remedies for the 
Violation Found bv the District Court___________

As part of its justification defense against plaintiffs'
disparate impact claims, the State raised concerns that the
injunctive relief requested by the plaintiffs might cause
providers to leave the Medicaid program. (R. 41: Memorandum, p.
10). In fact, the district court in its April 23, 1990
Memorandum stated:

[T]he Court shall conduct a further hearing to consider 
as part of the overall formulation of an appropriate 
remedy, what prophylactic steps, if any, should be taken 
to prevent or mitigate provider attrition. (R. 55: 
Memorandum at p . 19).

In other words, the district court appeared to accept the State's 
justification defense, but then proceeded to deprive it of that 
defense.

43



As a result, the proposed remedial plan submitted to the
district court included draft regulations dealing with the issue
of provider attrition. (R. 57: State Submission, Collective
App. B, p. 4). The State's counsel described the operation of
these regulations as follows:

[I]f a facility determines to opt out of the system they 
[sic] must notify the department and then certain 
procedures kick in. A person who is currently Medicaid 
eligible . . . would be allowed to remain in that
facility as a Medicaid patient so long as they [sic] 
choose to. Id.

and further:
An additional negative incentive to the industry for 
opting out is if they [sic] choose to opt out of the 
program they [sic] are required under this plan to stay 
out for a full two year period. .Id. at p. 10.

and finally:
[S]o long as a Medicaid person is located in that opting 
out facility the facility must comply with the federal 
Medicaid requirements. Id.
Although the draft regulations provide more detail, two 

overriding policies are apparent from these descriptions. First, 
facilities will be "locked in" to the Medicaid program until the 
last Medicaid patient dies or voluntarily leaves the facility.24 
Indeed, a facility which decides to opt out must notify the 
Medicaid patients that they can "reside in the facility as long 
as they wish." During this "lock-in" period the facility would 
still be subject to federal Medicaid requirements. (R. 57:
State Submission).

On earlier remand, the district court adopted an amendment 
to the Linton plan whereby a facility may make an initial 
"election" as to whether it will "consent" to lock-in upon 
withdrawal from participation.

44



The second policy provides that a facility which chooses to 
withdraw from the program will be "locked out" for a two-year 
period, which begins when the last Medicaid patient dies or is 
voluntarily discharged. Therefore, a withdrawing facility is 
forced to participate in Medicaid for an extended, indefinite 
period (potentially many years) and after this period is then 
prohibited from participation for a two-year period.

(1) The "Lock-in" And "Lock-out" Provisions of 
the Linton Plan Are Contrary to Federal Law 
and Unauthorized by State Law______________

The Medicaid program is based upon the premise that, with
federal financial assistance, each state will provide sufficient
payment to "enlist" providers to provide medical assistance to
eligible beneficiaries. In 42 U.S.C. § 1396a(a) (30) (A) , Congress
required that the state plan:

assure that payments . . . are sufficient to enlist
enough providers so that care and services are available 
under the plan at least to the same extent that such 
care and services are available to the general 
population in the geographic area . . . .  (emphasis 
added).

See also 42 C.F.R. § 447.204. Clearly, Congress did not intend 
to force providers to participate, but, rather, designed the 
Medicaid program around adequate payments by the states to 
attract sufficient numbers of qualified providers. Indeed, the 
voluntary nature of the Medicaid program is so apparent that 
courts which have addressed the matter customarily allude to or 
assume voluntary participation.25

See, e .g., Illinois Physicians U. v. Miller, 675 F.2d 151,
158 (7th Cir. 1982) (physicians); Newfield House v. Mass. Dept.

Continued on following page
45



Therefore, appellants submit that there is no authority- 
under Title XIX of the Social Security Act to force providers to 
participate in Medicaid through a lock-in provision and, in fact, 
involuntary participation is contrary to the intention of 
Congress. Similarly, there is no provision under Tennessee law 
which authorizes the defendant to force providers to participate 
in Medicaid through lock-in and the provisions of the Linton Plan 
purporting to do so are not authorized by the Tennessee General 
Assembly.

Mandatory exclusion from the Medicaid program as envisioned 
by the lock-out regulations is also contrary to federal law and 
unauthorized under state law. As previously stated, Congress 
mandated that the states "encourage" qualified providers to 
participate in Medicaid. In fact, the denial of participation 
can only be for "good cause." 42 C.F.R. § 442.12. Federal law 
delineates the reasons amounting to "good cause," which can 
generally be lumped together into the categories of fraud and 
abuse or failure to provide services as required by federal 
regulations. See 42 U.S.C. § 1320a-7; 42 C.F.R. Parts 498 and 
1001. Tennessee law follows this same approach. See Tenn. Code 
Ann. § 71-5-118. Simply stated, there is no provision of federal 
or Tennessee law which provides for exclusion of an otherwise

Continued from previous page
of Public Welfare, 651 F.2d 32 (1st Cir. 1981) (nursing home); 
Hearth, Inc. v. Dept, of Public Welfare, 617 F.2d 381 (5th Cir. 
1980) (nursing home); Whitney v. Heckler, 780 F.2d 963 (11th Cir. 
1986) (physicians); Minnesota Assn, of Health Care Facilities v. 
Minn. Dept, of Public Welfare, 602 F.2d 150 (8th Cir. 1979) 
(nursing home).

46



qualified provider for having previously made a business decision
that it did not want to participate in Medicaid.

(2) The Lock-in And Lock-out Requirements Impair 
Appellants' Contracts_________________ _____

The Medicaid Act and implementing regulations require a
contract (provider agreement) between the provider and the state.
42 U.S.C. § 1396a(a)(27); 42 C.F.R. §§ 431.107, 442.1. Each of
the appellants has a provider agreement. See. e .a .. R. 78:
Motion to Intervene for Purpose of Appeal, Ex. A to Affidavit.
Each provider agreement contains a provision which states:

III.G. The Facility or the State may cancel this
agreement by providing the other party with thirty 
(30) days written notice of such intent.

The provisions of the Linton Plan which "lock in" a provider
beyond thirty (30) days would override the 30-day termination
provision which is without question one of the most important
provisions of the provider agreement.

Article I, § 10 of the U.S. Constitution provides: "No
State shall . . . pass any . . . Law impairing the Obligation of
Contracts." Although this provision, taken literally, may seem
uncompromising, the Supreme Court has held that it is not
absolute. See United States Trust Co. v. New Jersey. 431 U.S. 1,
22 (1977). In General Motors v. Romein. 112 S. Ct. 1105, 1109
(1992), the Court described the first step in the analysis as
follows:

Generally, we first ask whether the change in state law 
has "operated as a substantial impairment of a 
contractual relationship . . . .  This inquiry has three 
components: whether there is a contractual
relationship, whether a change in law impairs that

47



contractual relationship, and whether the impairment is 
substantial.

Although total destruction of the contractual expectation is not 
required for a finding of substantial impairment, the severity of 
the impairment will increase the scrutiny to which the 
legislation will be subjected. Energy Reserves Group. Inc, v. 
Kansas Power and Light Co.. 459 U.S. 413, 412 (1983).

In the instant case, the impairment of appellants' provider 
agreements is substantial if not total. The "lock-in" 
regulations, although unauthorized by the Tennessee General 
Assembly, represent a change in law which prevents NFs from 
exercising the provision of their contracts which provides for 
termination upon 30 days' notice. This is true even under the 
revised Linton Plan, since the provider's election is 
irrevocable. Involuntary participation is a substantial 
impairment of the voluntary relationship on which the contract is 
based. Furthermore, the lock-in regulations make the term of the 
agreement (normally one year) meaningless. Finally, the provider 
agreement provides that the NF has an opportunity to accept 
changes to the Federal standards for participation. If it 
chooses not to do so, the provider agreement is automatically 
revoked. The lock-in regulations eliminate this important 
contractual right to make a business decision whether or not to 
participate in light of changes in federal policies.

Once an impairment is established, the more difficult 
question is whether that impairment is permitted under the 
Constitution. United States Trust Co.. 431 U.S. at 21. The

48



courts apply a more stringent standard when a state abrogates its
own contracts as opposed to private contracts. In United States
Trust Co.. the Supreme Court noted:

As with laws impairing the obligations of private 
contracts, an impairment may be constitutional if it is 
reasonable and necessary to serve an important public 
purpose. In applying this standard, however, complete 
deference to a legislative assessment of reasonableness 
and necessity is not appropriate because the State's 
self-interest is at stake.

431 U.S. at 25-26.
Here, the Tennessee General Assembly did not find that lock- 

in or lock-out were reasonable and necessary for any important 
public purpose. Instead, the defendant agreed to promulgate 
these provisions as a self-serving means of satisfying the 
district court's desire to prevent provider attrition without 
having to increase payments to enlist more providers, as 
envisioned by Congress in 42 U.S.C. § 1396a(a)(30).

V I I . CONCLUSION

For the foregoing reasons, the district court's disparate 
impact findings and conclusions should be reversed. Further, in 
light of the fact that the district court's remedial order was 
predicated upon its findings and conclusions with respect to 
disparate impact and because specific portions of that order are 
also inconsistent with federal law, the district court's remedial 
plan should be vacated and the matter should be remanded for 
consideration of an appropriately tailored remedy. Finally, in 
light of the substantial delay in addressing the merits caused by

49



the original parties' procedural maneuverings, an award of costs 
to appellants is appropriate.

Respectfully submitted,

William M. Barrick 
P. 0. Box 100129 
Nashville, TN 37224 
(615) 834-6520

Joel M. Hamme 
Joseph W. Metro 
REED SMITH SHAW & McCLAY 
1200 Eighteenth Street, N.W 
Washington, DC 20036 
(202) 457-6100

Attorneys for Defendant-Intervenors/Appellants

50



U N IT ED  ST A T E S  CO URT OF A PPE A LS 
FO R  T H E SIXTH CIRCU IT

3:87-0941
Cue
Cue Caption: MILDRED LEA LINTON

Plaintiff,
BELLE CARNEY,

Intervening Plaintiff

COMMISSIONER OF HEALTH AND ENVIRONMENT, 
STATE OF TENNESSEE,
Defendant,

ST. PETER VILLA, INC. ET AL 
Intervenors-Appellants.

APPELLANT’S/ABRfXKEKSDESIGNATION 
OF APPENDIX CONTENTS

Appellant/appellee, pursuant Co Sixth Circuit Rule 11(b), hereby designates the following filings in the district 
court's record as items to be included in the joint appendix:

DESCRIPTION OF ENTRY DATE RECORD 
ENTRY NO

District Court Docket Sheet 10/29/92 n/a
Complaint 12/9/87 3
Motion to Intervene 12/11/87 6

of pitfs in suppt of 
prel injunction, pp 12-18, 12/21/87 1419, 30-31, Ex A 
1st Stipulation, erf parties 1/25/88 21a
Report & Recommendation of Maq 3/18/88 33

Objections to Mag's 
BjL & ____ —— — ___3/28/88_______ _____ M ___________



DESCRIPTION OF ENTRY DATE r e c o r d
ENTRY nto

Pltf's response to R/R, p 14 4/6/88 36
Memorandum of Court 10/14/88 41
Order 10/14/88 42

Memorandum of Court 4/20/90 55
Order 4/20/90 56
State Submission 6/1/90 ~ 57

Amicus Brief - THCA 6/1/90 59 (Cont'd;

DESCRIPTION OF 
PROCEEDING OR TESTIMONY

DATE t r a n s c r i p t  p a g e s
AND VOI.irVfP

B. Bass Dep, pp 11-12, 77, 1/29/88 22 .3 2., 8, 25/ 3 8

B. Bass Dep, Ex 8 & 10, p 15 1/29/88 22
Transcript pp 9-10 6-29-90 67
Transcript of Proceedings 
1/25/88. pp 143-144 8/13/90 89 'Transcript of proceedings 
1/27/89, p 33 1/16/91 117

R-spectfully submitted,

NOTE: Appendix designation to be included in briefs.

6CA-108
7/87



DESCRIPTION OF ENTRY DATE recordENTRY No
Comments of Amicus 6/18/90 62
Supplemental comments of 
_Amicus_____________________ 6/22/90 65
Order 7/5/90 68

Final Order 7/5/90 69
Mtn to Intervene-St Peter
— Eil! a__________________ _ 7/30/90 75
Mtn to Intervene-Presbyt Hms 
Mtn to Intervene-RHA/Sulliva

7/30/90 
n 7/30/90

76
77

Mtn to Intervene-Brook Meade 
Mtn to Intervene-McKendree' ViJ laaP--------------------------

7/30/90
7/30/90

~TB
79 (Cont'd)

DESCRIPTION OF PROCEEDING OR TESTIMONY DATE TRANSCRIPT PAGES AND VOLUME

m

Respectfully submitted,

NOTE: Appendix designation to be included in bnefs.

6CA-1087/87



DESCRIPTION OF ENTRY DATE r e c o r d
ENTRY Mn

Mtn to Intervene-Cedars 
Health Care 7 / 3 0 / 9 0 80Defendant's Prop Findings 
of fact & Conclusions of Law 2 / 2 3 / 8 9 n/a

MotionMandate 5 / 1 0 / 9 3
5 / 1 0 / 9 3

1 4 4
1 4 3

Order 6 / 2 1 / 9 3 1 5 3

Memorandum 7 / 2 / 9 3 T53-----------------

Order
Memorandum 1 / 2/92  ----------

7 / 1 2 / 9 3
-------------T5T-----------------

1 5 6

Notices of Appeal / / 1 2 / 93 
8 / 3 / 9 0 1 5 8 / 1 5 9 / 1 6 1 / 1 6 2 / 1 6 3

DESCRIPTION OF 
PROCEEDING OR TESTIMONY

DATE TRANSCRIPT PAGES
AND VOr.TJMP

•

F spectfully submitted,

pU//r*-  ̂ _ / /  J/T)U

NOTE: Appendix designation to be included in briefs.

6CA-1087/87



CERTIFICATE OF SERVICE
I hereby certify that two true and correct copies of the 

foregoing Brief of the Intervenors-Appellants have been forwarded 
by U.S. Mail, postage prepaid, on this M L  day of September, 
1994, to all persons shown on the service below.

Jennifer Helton Small, Esq. 
Deputy Attorney General 
450 James Robertson Parkway 
Nashville, TN 37219

Ms. Maya Wiley 
Ms. Elanine Jones 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York City, NY 10013

G. Gordon Bonnyman, Esq.
Legal Services of Middle 
Tennessee, Inc.

800 Stahlman Building 
211 Union Street 
Nashville, TN 37201
Pam Ford Wright 
West Tennessee Legal Services 
P.O. Box 2066 
Jackson, TN 38301