Hatten-Gonzales v. Earnest

Filing 981

AMENDED MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales adopting 973 Special Master's Report as clarified in this order. Amended to correct the date the parties will complete system access logistics activities to NOVEMBER 2, 2020. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DEBRA HATTEN-GONZALES, et al.,
Plaintiffs,
vs.

Civ. No. 88-0385 KG/CG
Consolidated with
Civ. No. 88-786 KG/CG

DAVID R. SCRASE, Secretary of the
New Mexico Human Services Department,
Defendant.
AMENDED MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon the Special Master’s Report (Report)
recommending a case file review process, filed September 18, 2020. (Doc. 973). The parties
filed timely objections and requests for clarification on October 2, 2020. (Docs. 976 and 977);
see also Fed. R. Civ. P. 53(f)(2) (party “may file objections to” or move to modify special
master’s report). On October 15, 2020, the Special Master filed a timely reply to those
objections and requests for clarification. (Doc. 979).
Having reviewed the Report, the objections and requests for clarification, and the Special
Master’s reply, the Court, applying a de novo standard of review, adopts the Report, in part, and
modifies the Report as described below. See Fed. R. Civ. P. 53(f)(3) and (4) (court decides de
novo objections to special master’s factual findings and legal conclusions); Fed. R. Civ. P.
53(f)(1) (court may adopt or modify special master’s report).
I. Background
The Second Revised Modified Settlement Agreement and Order (Consent Decree) states
in Section IV(A)(1) that “[t]he parties agree that a case file review is necessary to measure

compliance with Section III [Application Processing Practices] and to verify that systemic or
programmatic barriers to proper application determinations and access to benefits do not exist
with HSD’s application processing practices.”1 (Doc. 854-1) at 11. The Consent Decree
describes the requirements for completing a case file review in Section IV(A). Id. at 11-13.
Furthermore, the Joint Motion to Approve Two Corrective Action Plans (CAPs) states:
When HSD has fully implemented the provisions of both CAPs, Plaintiffs will then
conduct a file review. If that file review does not reveal any systemic barriers as defined
in [Section] IV of the Consent Decree, and if Plaintiffs have not learned of other systemic
barriers as defined in [Section] I of the Consent Decree, Defendant may move for
dismissal of the case at that time.
(Doc. 878) at 2, ¶ 4; see also (Doc. 879) (Order Approving Corrective Action Plans). The Court
notes that the first CAP seeks “to remedy the specific systemic barriers identified in Plaintiffs’
most recent file review, the results of which were previously reported to the Court.” (Doc. 878)
at 1, ¶ 1. The second CAP, known as the non-CAP, seeks “to remedy the systemic barriers
identified outside the most recent file review and that have been the subject of previous Orders
issued by the Court.” Id. at 1, ¶ 2.
Having learned that the parties cannot agree on a process for the upcoming case file
review, despite multiple mediation efforts by the Special Master, the Court ordered the parties to
file their respective proposals for a case file review process by August 31, 2020, which they did.
(Doc. 967) at 3; see also (Doc. 969) (Plaintiffs’ Case Review Proposal); (Doc. 970) (Defendant’s
Case File Review Process Proposal). On September 8, 2020, the Court ordered the Special
Master to “review the parties’ proposals for the case file review process and file a report with the
Court recommending a case file review process….” (Doc. 972). The Court further provided the
parties with an opportunity “to file any objections to the report.” Id.

1

“HSD” is the New Mexico Human Services Department.
2

In accordance with the Court’s order, the Special Master filed his Report and the parties
filed their objections and requests for clarification. The Court subsequently ordered the Special
Master to file a reply to the objections and requests for clarification, which he did.2 See (Doc.
978). The Court also stated that it would not entertain further briefing from the parties. Id.
II. The Report
The Special Master’s proposed case file review process encompasses the following seven
areas: case file review sample, systems access logistics, training, case file reviewers, case file
review tool, case file review reporting tool, and validation of the case file review. The Special
Master also proposes deadlines for accomplishing various tasks in the case file review process.
Finally, the Special Master attached to the Report, in PDF format, a proposed case file review
tool consisting of 16 questions and a proposed case file review reporting tool. The actual tools
are Excel spreadsheets with drop-down menus.
III. Discussion
The Court will examine each area of the proposed case file review process, including any
objections or requests for clarification as well as the Special Master’s reply to those concerns.
A. Case File Review Sample
1. Time Frame for Case File Review Sample
The Consent Decree states in Section IV(A)(2) that “[t]he case file review shall be based
on the prior six months of eligibility determinations….” (Doc. 854-1) at 11. The Special Master
recommends that Defendant “pull the sample and include eligibility determination actions for the
months of February, March, May, June, July and August 2020.” (Doc. 973) at 2. Considering

2

The Court ordered that the reply not exceed the scope of the Report or the responses/objections
filed by the parties. See (Doc. 978).
3

that the COVID-19 pandemic began the spring of 2020 in New Mexico, “[t]he Special Master
chose the months above because it provides the Court an opportunity for a well-rounded view of
performance and may include eligibility determinations prior to, during, and post waiver
implementation.” Id. at 3. The Special Master also notes that Defendant’s July 17, 2020, CAP
summary “indicates the CAP remedies related to systemic barriers identified in the prior case
review were completed by December 22, 2019.” Id.; see also (Doc. 965-2).
a. Plaintiffs’ Objections
Plaintiffs object to the six months chosen by the Special Master because they are not
consecutive. Plaintiffs assert that the Consent Decree contemplates a time frame consisting of
six consecutive months. Plaintiffs also contend that the Special Master does not explain why he
excluded April 2020. In addition, Plaintiffs contend that eliminating April will complicate the
case file review “because cases with decisions up to July are likely to also have had relevant
actions made in April.” (Doc. 976) at 4-5. Plaintiffs request that the six-month time frame begin
on February 1, 2020, and end on July 31, 2020.
In his reply, the Special Master explains his reasoning for excluding April 2020 and how
the non-consecutive months would not create confusion for the reviewers. Nonetheless, after
considering the parties’ responses to his recommended case file review time frame, the Special
Master states that “it is important that August and September be included in the sample universe”
to provide a view of Defendant’s more recent performance. (Doc. 979) at 6-7. Consequently,
the Special Master now recommends that the case file review time frame include the following
consecutive six months: April, May, June, July, August, and September 2020. In considering
this new recommendation de novo, the Court concludes that such a six-month time frame is
appropriate and acceptable under the Consent Decree. Hence, the Court adopts the Special

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Master’s recommendation that the case file review time frame begin on April, 1, 2020, and end
on September 30, 2020.
b. Defendant’s Request for Clarification
“Defendant seeks clarification that compliance with the decree, via the case file review,
shall not be evaluated based on compliance with CAP item 3.a and non-CAP items 4.a, 4.b, 4.c,
and 4.d.” (Doc. 977) at 2. Defendant notes “that CAP item 3.a had yet to be implemented by the
last sample month (August 2020)” and that “non-CAP items 4.a, 4.b, 4.c, and 4.d are not
included as those items are not related to systemic barriers identified in the prior case review….”
Id. Defendant concludes that excluding CAP item 3.a and non-CAP items 4.a, 4.b, 4.c, and 4.d
from the case file review “will not impact the results of the case file review or compliance with
the decree.” Id.
The Special Master replies by noting that Defendant’s own case file review proposal does
not exclude the above CAP and non-CAP items. The Special Master also clarifies “that
Defendant will be measured for compliance with Section III of the Second Modified Consent
Decree and associated requirements including those items being remedied by CAP items as
documented in Defendant’s CAP Summary for” CAP item 3.a and non-CAP items 4.a, 4.b, 4.c
and 4.d. (Doc. 979) at 6. In fact, the Court observes that it appears that implementation of CAP
item 3.a and non-CAP items 4.a, 4.b, 4.c, and 4.d will have been completed by August 23, 2020,
before the case file review time frame ends on September 30, 2020. 3 Moreover, pursuant to the

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The part of CAP item 3.a Defendant refers to requires implementation of all change requests
and work requests “identified in the CAP” by August 23, 2020. (Doc. 965-2) at 5. Non-CAP
items 4.a, 4.b, 4.c, and 4.d concern Yes/NM, immigrant eligibility, EBT card activation, and
emergency medical services for aliens. Id. at 6-9. Although the majority of the permanent
solutions for those non-CAP items have been completed, even as early as January 2019, it
appears that the last permanent solution should have been completed by August 23, 2020. Id.
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Joint Motion to Approve Two Corrective Action Plans, Plaintiffs have a right to conduct a case
file review once “HSD has fully implemented the provisions of both CAPs….” (Doc. 878) at 2,
¶ 4. Notwithstanding the Joint Motion to Approve Two Corrective Action Plans, Defendant fails
to explain why the Court should not consider non-CAP items 4.a, 4.b, 4.c, and 4.d simply
because they are not related to systemic barriers identified in the prior case review.
Having considered de novo Defendant’s request to exclude CAP item 3.a and non-CAP
items 4.a, 4.b, 4.c, and 4.d from the case file review and the Special Master’s reply to that
request, the Court determines that Defendant has failed to justify his request to exclude CAP
item 3.a and non-CAP items 4.a, 4.b, 4.c, and 4.d from the case file review. The Court,
therefore, denies the request to exclude CAP item 3.a and non-CAP items 4.a, 4.b, 4.c, and 4.d
from the case file review.
2. Case File Review Sample Size and Method of Pulling Case File Review
Samples
With respect to the size of the case file review sample and the method of pulling the case
file review sample, the Consent Decree states in Section IV(A)(3) that “[t]he case file review
shall be conducted by Plaintiffs on a random statewide sample of files of all Medicaid and SNAP
applications and cases (Approvals, Denials, and Recertifications) with eligibility determinations
as to Medicaid and SNAP initial applications and renewals….” (Doc. 854-1) at 11. The Consent
Decree further states in Section IV(A)(3):
The size of the sample shall be sufficient to provide no greater than a 5% confidence
interval (margin of error) at the 95% confidence level for a 25% or greater incidence rate
of processing errors in the sample. This sample size is estimated to be approximately 300
case files. The parties may agree in advance to different statistical parameters – e.g.,
confidence interval or estimated error rate -- for determination of the appropriate sample
size.

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Id. at 12. In addition, “[p]rocessing errors in the sample may be considered systemic or
programmatic barriers” if the “[e]rrors … occur in more than 15% of applications.” Id.
The Special Master proposes that Defendant “pull the sample in the same manner used
for the prior case review activity.” (Doc. 973) at 3. The Special Master recommends “that the
parties … utilize the seed number and random selection activity to establish a random sample of
120” case files. Id. at 4. The Special Master explains that, “[b]ased on the discussion with
parties,” he “believes a representative measurement of Defendant’s compliance may be achieved
with a sample size smaller than the full sample….” Id. The Special Master also recommends
that Defendant “provide the final sample list to the Special Master and Plaintiffs” and that “[t]he
Special Master will monitor the random case selection process.” Id. The Special Master
proposes that Defendant pull the case file review samples 15 calendar days from the date of the
entry of this Memorandum Opinion and Order. Id.
a. Plaintiffs’ Objections
Plaintiffs object to the 120-case file review sample size arguing that such a sample size
deviates from the Consent Decree’s margin of error and confidence level requirements that
produce an approximate 300-case file review sample size. Plaintiffs also contend that the
Special Master does not provide a reason for that deviation. Plaintiffs argue that
[a]vailable data from HSD show that the number of case decisions from February through
July 2020, a six-month period similar to the one proposed by the Special Master are very
similar to what they were in 2018, when the previous case review took place on the basis
of 288 cases. There were 701,919 decisions in February through July 2020 and 828,230
decisions from February through July of 2018. In the past case review, a total of 450,000
cases contained the actions described above (because some cases had multiple program
decisions each month). As such, a similar sample size is necessary to obtain the
statistically significant results required by the Decree.
(Doc. 976) at 3 (footnote omitted). In addition, Plaintiffs assert that the parties cannot deviate
from the Consent Decree’s statistical parameters and the 300-case file review sample size
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because the parties have not agreed to alternative statistical parameters, as required under the
Consent Decree. Plaintiffs correctly maintain that the Court can only deviate from the Consent
Decree if a party moves to modify the Consent Decree.
The Special Master replies to this objection by observing that Plaintiffs only requested
120 case files to review procedural closures or denials in 2014, 2015, and 2018. 4 See (Doc. 9793) at 1, ¶ 2. The Special Master also notes that the Consent Decree’s parameters that define what
constitutes a systemic barrier (errors occurring in more than 15% of applications) “apply to any
sample size.” (Doc. 979) at 4.
The Court acknowledges that the Consent decree allows parties to “agree in advance to
different statistical parameters – e.g., confidence interval or estimated error rate -- for
determination of the appropriate sample size.” (Doc. 854-1) at 12. In accordance with this
provision, the parties in the past agreed to different statistical parameters, including a 120-case
file review sample size. The parties, however, do not agree to such a sample size for this
particular case file review. Under this situation, the Consent Decree provides that the case file
review sample size consist of approximately 300 case files. The Court, therefore, sustains
Plaintiffs’ objection to the 120-case file review sample size and will order that the case file
review sample size consist of 288 case files, which is approximately 300 case review files, and
statistically significant by Plaintiffs’ own account.
b. The Parties’ Requests for Clarification
The parties request clarification regarding the method employed by Defendant in the last
case file review to pull case sample files. Plaintiffs request that the Special Master include the

Plaintiffs note that in prior negotiations they “discussed the possibility of utilizing a smaller
number of cases in a targeted case review of denials only which would draw from a much
smaller universe of cases (denials, rather than all case actions)….” (Doc. 976) at 2.
4

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specific requirements of that sampling process as described in a September 12, 2018, email from
Vida Tapia-Sanchez, the HSD Income Support Division Deputy Director of Policy and Program,
“wherein a seed number is provided by Plaintiffs’ counsel and the SAS statistical software is
used to pull the sample.” See (Doc. 976) at 7; (Doc. 976-1).
The Special Master clarifies in his reply that he
intends for the Defendant to use the same process documented by HSD and submitted to
the Special Master and Plaintiffs on August 13, 2018 via email from Vida Tapia Sanchez
(Exhibit #1), with the flexibility for modifications to accommodate final sample months
and size orders from the Court for this case review.
(Doc. 979) at 3. The Special Master also refers to the September 12, 2018, email from Vida
Tapia-Sanchez, which Plaintiffs cite, to describe the sampling process. Moreover, the Special
Master clarifies that he “intends for [the] parties to perform this same random sampling process
remotely via Microsoft Teams or Zoom to allow the participants performing the work to share
computer screens to ensure transparency.” Id.
Considering the Special Master’s clarified recommendation de novo, the Court adopts the
Special Master’s recommendation that (1) the random case sampling process follow the process
described in both the August 13, 2018, and September 12, 2018, emails from Vida Tapia
Sanchez; (2) the sampling process occur remotely via Microsoft Teams or Zoom with computer
screen sharing; (3) Defendant provide the final sample list to the Special Master and Plaintiffs,
and (4) the Special Master monitor the case file selection process.
B. System Access Logistics
The Special Master recommends that Plaintiffs “identify their readers and complete
required security access forms/trainings prior to the established training deadline.” (Doc. 973) at
4. The Special Master further recommends that Defendant “provide Plaintiffs read-only access
to sample cases via a Virtual Private Network (VPN) or the SharePoint type setting as indicated
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in Defendant’s case review plan (Doc. 970).” Id. Also, the Special Master proposes that
Defendant “provide technical assistance points of contact to Plaintiffs during work hours until
the case review activity is completed.” Id. The Special Master proposes that the parties
complete system access logistics activities within 10 calendar days of the date of the entry of this
Memorandum Opinion and Order, and prior to training. Id.
1. Plaintiffs’ Request for Clarification
Plaintiffs note that Defendant’s case file review plan (Doc. 970), referenced by the
Special Master, contemplates that the case file review occur “on site in an HSD office (COVID
safe environment will be provided) with access to ASPEN as needed to conduct the case file
review within the appropriate review parameters.” (Doc. 970) at 6. Considering the current
COVID-19 pandemic and the Governor’s order to telework when possible, Plaintiffs request that
the Court order “remote access identical to the access provided during the past case file review.”
(Doc. 976) at 5.
Plaintiffs explain that remote access to case review files is possible if Defendant follows
his previous case file review process: image copies of case files from ASPEN “(referred to as
the production environment)” on the day the sample is pulled, load the “copied production
environment onto an encrypted flash drive, known as an IRONKEY,” and load the information
from the IRONKEY onto a computer from which Plaintiffs can access the case files. (Doc. 976)
at 6. Plaintiffs maintain that with the copied case files on IRONKEY they can remotely access
case files either on their own computers or on HSD issued computers.
2. Defendant’s Objection
Defendant objects to the recommendation that he provide Plaintiffs with read-only access
to case files via a VPN or SharePoint type of setting. Defendant has several concerns with this

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recommendation. First, he states that “[t]he ASPEN system, without considerable development
and modification work, is not designed to select … cases from the system and either download or
copy them to [a] separate database, (SharePoint) or separate ASPEN system database with
remote access.” (Doc. 977) at 2. Second, if Plaintiffs have VPN access to ASPEN, Defendant
states Plaintiffs will “have access to every client file in the ASPEN system … in a nonproduction environment” for the case file review time frame. Id. at 3. Consequently, Defendant
proposes that Plaintiffs conduct the case file review on-site in an HSD office, with COVID-19
safety precautions, where Plaintiffs cannot access case files outside of the case file review
sample. Third, Defendant contends that “the SharePoint setting option, while possible is not
practicable within the timeframes provided (10 Calendar Days from Order) and could result in
errors associated with copying the information and uploading.” Id. at 3. In sum, Defendant
requests that Plaintiffs use the method for accessing the case file samples Plaintiffs used in the
prior case file review, which Plaintiffs conducted at Defendant’s office.
3. The Special Master’s Reply
“The Special Master disagrees that imaging a copy of the ASPEN database to a
production environment requires major modification of the ASPEN system.” (Doc. 979) at 8.
The Special Master notes that “Defendant performed this action during the 2018 case review
process to allow the Plaintiffs access to the system without interfering with [the] ASPEN
production system.” Id. In 2018, Defendant used a Deloitte team to create the production
environment in three days. (Doc. 979-4). The Special Master further notes that he understands
that “an image of the ASPEN production environment is ‘all or none’ meaning the image
requires an image of the entire database and not specific cases.” (Doc. 979) at 8. In fact,
“Plaintiffs had access to all cases in the ASPEN image of the production environment during the

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2018 case review.” Id. at 8-9. The Special Master observes that the case file review tools will
limit Plaintiffs to the pulled sample cases “regardless of whether or not Plaintiffs have access to
additional information.” Id. at 9.
The Special Master also “no longer recommend[s] the SharePoint option due to the
laborious process and potential opportunities for data inconsistencies and omissions.” Id. In
addition, the Special Master does not recommend that the parties “violate the Governor’s public
health executive orders requesting individuals to telework to the greatest extent possible.” Id.
In sum, the Special Master now recommends that Plaintiffs have “remote access to an
image of the ASPEN database in the production environment or the read-only version of the
ASPEN database.” Id. Furthermore, the Special Master recommends that the Court order
Plaintiffs to access only case information relevant to the case file samples pulled for this review.
Finally, similar to the 2018 case file review, the Special Master recommends that Defendant
upload onto SharePoint any “electronic copies of ASPEN screen shots, correspondence and/or
verifications” Plaintiffs request, i.e., case documentation, as provided in the 2018 DHG Case
Review document See (Doc. 979-7) at 2.
Having reviewed the parties’ concerns regarding system access logistics and the Special
Master’s reply to those concerns, the Court decides de novo to adopt the Special Master’s
recommendations that (1) Defendant provide Plaintiffs with “remote access to an image of the
ASPEN database in the production environment or the read-only version of the ASPEN
database;” (2) Plaintiffs not access case information that is not relevant to the case file review
samples pulled for this case file review; and (3) Defendant upload onto SharePoint any case
documentation consisting of “electronic copies of ASPEN screen shots, correspondence and/or
verifications” which Plaintiffs request in accordance with the 2018 DHG Case Review document

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(Doc. 979-7); and (4) Defendant provide technical assistance points of contact to Plaintiffs
during work hours while they conduct their case review activities.
C. Training
The Special Master recommends that Defendant “provide a virtual or recorded overview
of ASPEN or SharePoint method used to access the case information functionality for Plaintiffs.”
(Doc. 973) at 4. If Defendant provides a recorded overview, the Special Master recommends
that Defendant provide Plaintiffs an opportunity “to obtain clarification prior to start of the
review.” Id. The Special Master proposes that Defendant complete training 14 calendar days
from the date of the entry of this Memorandum Opinion and Order. Id. at 5.
The parties do not object to the training recommendations nor do they seek any
clarification. Having considered the merits of the training recommendation de novo, the Court
adopts the training recommendation in its entirety.
D. Case File Reviewers
The Special Master recommends that “Counsel … read the sample cases using a uniform
case review tool” and that case reading activities begin no later than 15 calendar days from the
date of the entry of this Memorandum Opinion and Order “or 1 Calendar day following the date
training, access and sample has been completed (whichever is sooner).” Id. (bold type omitted).
The parties do not object to the recommendation regarding case file reviewers nor do they
seek any clarification. Having considered the merits of the recommendation regarding case file
reviewers de novo, the Court adopts that recommendation in its entirety.
E. Case File Review Tool
The Special Master also proposes “a single sixteen question [case file review] tool” in
order “to measure both application and renewal eligibility processing performance.” Id. The

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case file review tool contains a drop-down menu from which a user can select response(s) to the
tool. Id.
1. Plaintiffs’ Objection
Plaintiffs object to Question 10 of the case file review tool, which asks, “Was verification
request form (HUMAD) accurate and seeking information as required by Decree?”5 (Doc. 9731). Plaintiffs believe that this question does not fully address the Consent Decree’s “requirement
that Defendant not require applicants to supply verification that is not necessary to determine
eligibility.” (Doc. 976) at 6-7. In addition to the improper use of the HUMAD form, Plaintiffs
argue that Defendant seeks unnecessary verifications verbally and through the use of “other
illegal notices.” Id. at 7. Plaintiffs complain that Question 10 “only checks for improper
HUMAD forms….” Id. Plaintiffs, therefore, request that the case file review tool include “the
question whether case files contain a request for verification that is not necessary to determine
eligibility relevant to the review period.” Id. at 8.
The Special Master replies to Plaintiffs’ objection by recommending this question,
instead: “Was the verification request accurate and seeking information as required by the
Decree and Regulations (verbal or written)?” (Doc. 979) at 10. Upon a de novo review of
Plaintiffs’ objection and the Special Master’s revised Question 10, the Court finds that revised
Question 10 cures Plaintiffs’ objection to Question 10. Consequently, the Court adopts the
Special Master’s recommendation to revise Question 10 as described above.
2. Defendant’s Objections
Defendant objects to Question 13 of the case file review tool, which asks, “If applicable,
is a document receipt on file and maintained for the past six months?” (Doc. 973-1). Defendant

5

HUMAD stands for “Help Us Make a Decision.”
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asserts that this question does not track Section III(I) of the Consent Decree which requires that
“[e]very ISD field office will provide applicants with receipts for verification documents
submitted subsequent to the interview and retain them in the case file or office for at least six
months.” (Doc. 854-1) at 10. Defendant also contends that Question 13 is vague because it
“would yield a negative answer every time the application and verification documents are less
than 6-months old.” (Doc. 977) at 4. Defendant, therefore, requests that Question 13 read as
follows: “If applicable, is a document receipt for verifications submitted subsequent to the
interview on file?” Id. In the alternative, Defendant requests that the Court eliminate Question
13.
The Special Master replies to Defendant’s objection by proposing the following revised
Question 13: “If applicable, is a document receipt on file and maintained, as required by the
Decree?” (Doc. 979) at 11. Upon a de novo review of Defendant’s objections and the Special
Master’s revised Question 13, the Court finds that revised Question 13 cures Defendant’s
objections to Question 13. The Court, therefore, adopts the Special Master’s recommendation to
revise Question 13 as described above.
F. Case File Review Reporting Tool
The Special Master also created a single case file review reporting tool “to report
objective and quantitative outcomes of the case review to ensure uniformity in response
reporting.” (Doc. 973) at 5. The case file review reporting tool requires Defendant and Plaintiffs
to “complete [an] Excel spreadsheet with drop-down responses to report the findings for the
action read.” Id.; see also (Doc. 973-2). The Special Master proposes that once the parties
complete the case file review reporting tool accurately, the parties will submit their respective
case file review reporting tools (Excel spread sheets) and case file review tools (PDFs) to the

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Special Master and to opposing counsel 45 business days from the date of the commencement of
the case reading activities.
Plaintiffs do not object to the case file review reporting tool nor do they seek a
clarification.
Defendant also does not object to that tool, but he seeks clarification of several aspects of
the case file review reporting tool. First, Defendant requests that the Special Master and the
Compliance Specialist re-evaluate the case file review reporting tool “to make sure that the
dropdown menu is consistent and does not produce a false negative outcome.” (Doc. 977) at 5.
Second, Defendant “requests that the Special Master and Compliance Specialist develop a
scoring guide to eliminate any problems with the reporting tool and the drop-down menu
scoring.” Id. at 6. Third, Defendant contends that clarification is needed regarding how to
complete the case file review reporting tool accurately. Finally, Defendant requests that “[i]f
either party has not completed reviewing all … cases by the deadline [for submitting to the
Special Master the case file review reporting tools (Excel spread sheets) and case file review
tools (PDFs)], only those cases completed by that deadline will be accepted.” Id.
The Special Master replies to Defendant’s request for clarification by revising the case
file review reporting tool “to allow the reviewers to provide a response for each question on the
Case Review Tool.” (Doc. 979) at 11. The Special Master explains that “this change eliminates
the need for additional clarification regarding the correct method for completing the reporting
tool.” Id. Also, “[t]he question responses for individual questions 1-18 are the same as the
questions on the case review tool.” Id. The Special Master further agrees with Defendant “that
all deadlines in this case review process must strictly be enforced.” Id.

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The Court finds upon de novo review of Defendant’s objections and the Special Master’s
reply that the revised case file review reporting tool cures any objection Defendant has to the
tool. The Court, therefore, adopts the recommendation to use the revised case file review
reporting tool. Moreover, the Special Master will accept only those case reviews completed by
the deadline for submitting the case file review reporting tools (Excel spread sheets) and case file
review tools (PDFs) to the Special Master. Finally, in light of the 288-case file review sample
size, the Court will modify that submission deadline to 60 business days from the date of the
commencement of the case reading activities.
G. Validation
Lastly, the Special Master recommends that he “review the submitted results to resolve
error case disagreements and … provide the final outcome to both parties.” (Doc. 973) at 6. The
Special Master further recommends that he “meet and confer with [the] parties as he deems
necessary to finalize the results.” Id. Once the Special Master completes the validation process,
“the Special Master will issue a report.” Id. The Special Master proposes that he complete the
validation process “30 Business Days from the receipt of the completed Case Review Reporting
Tool and the Case Review Tool PDF from [the] parties.” Id. (bold type omitted).
The parties do not object to the validation recommendation nor do they seek any
clarification. Having considered the merits of the validation recommendation de novo, the Court
adopts that recommendation in its entirety.
IT IS ORDERED that
1. the Special Master’s Report (Doc. 973) is modified and clarified as described supra;
2. the Court adopts the Special Master’s Report (Doc. 973) to the extent provided in this
Memorandum Opinion and Order; and

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3. the parties and the Special Master will adhere to following case file review deadlines:
a. Defendant will pull 288 random case files for the time frame of April 1, 2020,
to September 30, 2020, by NOVEMBER 5, 2020;
b. the parties will complete system access logistics activities by NOVEMBER 2,
2020, but prior to training;
c. Defendant will complete training activities by NOVEMBER 4, 2020;
d. the parties will commence case file reading activities either by NOVEMBER
5, 2020, or one calendar day following the completion date for training, system access
logistics, or training, whichever occurs first;
e. the parties will provide the Special Master completed case file review reporting
tools (Excel spread sheets) and case file review tools (PDFs) 60 business days from the
commencement of case reading activities; and
f. the Special Master will complete the validation process 30 business days from
his receipt of the completed case file review reporting tools (Excel spread sheets) and
case file review tools (PDFs).

___________________________________
UNITED STATES DISTRICT JUDGE

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