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Judge Orders TennCare Eligibility Hearings

A federal judge has ordered state TennCare managers to hold hearings for Tennesseans who, because of application processing delays, have spent months waiting to find out if they qualify for taxpayer-finance health coverage.

U.S. District Court Judge Todd Campbell issued a preliminary injunction Tuesday — effective immediately — in a lawsuit against Tennessee’s Medicaid services agency that required the department to halt its refusal to provide hearings about delays in eligibility determinations within a certain number of days after one is requested. Those making the request have to prove that they have not learned the outcome of their application within 45 days if eligibility is based on income, while those seeking eligibility for a disability have to wait 90 days.

The lawsuit was also upgraded to class-action status.

“TennCare is committed to operationalizing the Judge’s Orders at this time,” TennCare spokesman John Goetz told TNReport Wednesday in an email.

The lawsuit was brought in July by the Southern Poverty Law Center, the National Health Law Program and the Tennessee Justice Center on behalf of several Tennesseans who felt their applications for assistance were not being heard in a timely enough manner, and that the state was not providing proper in-person assistance for applicants, instead sending them to the federal exchange.

The suit was filed shortly after the federal Centers for Medicare and Medicaid Services sent a letter to the state alleging it had failed to meet several of the requirements of the Affordable Care Act.

In his order, Campbell wrote that injuries suffered by the would-be TennCare enrollees “cannot be made whole by a retroactive award of money after the litigation process is complete.”

“The plaintiff class members are economically impoverished and, without TennCare benefits, have forgone or are forgoing vital medical treatments, services and prescriptions,” the judge added.

Tennessee Gov. Bill Haslam recently brushed off criticism that the state’s been dragging its feet signing up qualified applicants. Enrollment in 2014 is on record pace for the 20-year-old program’s history, the governor indicated.

One of TennCare’s attorneys argued that because of the issues the state has been having with getting its new eligibility system online, they had been given permission to send Medicaid applicants to the federal exchanges, and federal officials had failed to send necessary information to them about the plaintiffs that would help them process the applications faster.

Darin Gordon, the head of the agency, appeared before the General Assembly’s joint Fiscal Review Committee last week, and explained that Northrop Grumman — the company who won the bid to produce the system — was very much behind deadline, and the state had contracted with a third-party auditor to determine how much longer it would take for them to produce the necessary system.

However, Campbell wrote in his order that he was not persuaded that “the State can delegate its responsibilities under the Medicaid program to some other entity – whether that entity is a private party or the Federal Government.”

If a state decides to participate in Medicaid, “it is required to ensure that applications are adjudicated reasonably promptly and that hearings on delayed adjudications are held reasonably promptly,” Campbell continued in the injunction.

Additionally, according to the order, the federal government filed a “Statement of Interest” in the case, which said that TennCare “at all times retains the ultimate responsibility to ensure that a reasonably prompt decision is made on applications, including ones that have been submitted in the first instance to the federally facilitated Exchange in the State.”

Michele Johnson, executive director of the Tennessee Justice Center, said in a press release that her organization is “jubilant” that “vulnerable Tennesseans will now get the care upon which their lives and futures depend.”

ACLU: Victory for Free Speech in Occupy Lawsuit Ruling

Press release from American Civil Liberties Union-TN; June 13, 2013:

NASHVILLE – In a ruling underscoring Tennesseans’ right to political speech, a federal judge ruled late yesterday that the state of Tennessee’s arrest of Occupy Nashville protesters was an unconstitutional violation of their First Amendment rights.

“The Court’s ruling is a resounding victory for the principles of free speech and protest championed by Occupy Nashville and the ACLU,” said ACLU-TN cooperating attorney David Briley, of Bone McAllester Norton PLLC. “This decision reinforces that the state cannot just arbitrarily limit free speech in any manner it wants to.”

In the ruling, Judge Aleta A. Trauger wrote, “The First Amendment cannot yield to the enforcement of state regulations that have no legal effect…In choosing to adopt and implement new regulations by fiat without seeking necessary approval from the Attorney General, they made an unreasonable choice that violated the plaintiffs’ constitutional rights in multiple respects.”

“The right to free speech and political protest is crucial to a healthy democracy, perhaps today more than ever,” said ACLU-TN Executive Director Hedy Weinberg. “We applaud the Court for safeguarding the essential guarantees of the First Amendment.”

ACLU-TN filed the lawsuit, Occupy Nashville et. al., v. Haslam et. al., in October 2011 after the State of Tennessee met in secret and revised the rules controlling Legislative Plaza to implement a curfew and require use and security fees and $1,000,000 in liability insurance prior to community members engaging in assembly activity. The state then arrested the Occupy Nashville demonstrators under the new rules. Prior to their arrests, the demonstrators had been gathered at Legislative Plaza in downtown Nashville to peacefully express their frustration with the government for a couple of weeks.

The lawsuit was filed in the United States District Court for the Middle District of Tennessee, Nashville Division.

In addition to Briley, the plaintiffs are represented by ACLU-TN Legal Director Tom Castelli; ACLU-TN Cooperating Attorney Patrick Frogge of Bell Tennent & Frogge PLLC; and ACLU-TN Cooperating Attorney Tricia Herzfeld of Ozment Law.

The decision for this case can be found here.

The order for this case can be found here.

TN AG Announces $29M Agreement with Toyota over Acceleration Issues

Press release from the Tennessee Attorney General; February 14, 2013:

Tennessee today joined 29 other states in announcing a $29 million agreement with Toyota Motor Corporation and its related North America entities over allegations Toyota concealed safety issues related to unintended acceleration. The agreement was filed today in Knox County Chancery Court and is pending Court approval.

Tennessee will receive approximately $700,000 as part of the agreement to resolve consumer protection claims. The agreement was filed in conjunction with the Consumer Affairs Division of the Tennessee Department of Commerce and Insurance (TDCI). Toyota has also agreed to provide improved communication with consumers if other potential safety concerns arise. Specifically, Toyota will be restricted from advertising the safety of vehicles without sound engineering data to back such safety claims.

“We hope that this agreement will benefit consumers through Toyota’s commitment to improve internal communications and timely public notifications regarding any future safety concerns with the company’s products,” Attorney General Cooper said.

In a complaint filed today along with the agreement, the states alleged Toyota engaged in unfair and deceptive practices when it failed to timely disclose known safety defects with accelerator pedals. The investigating state attorneys general determined poor communication between Toyota’s nerve center in Japan and Toyota’s United States holdings was partially responsible for Toyota’s failure to timely report known safety issues. The agreement emphasizes changes in the corporate culture and corporate chain of command to enhance Toyota’s responsiveness to regulatory agencies in the United States.

In addition, the agreement provides that Toyota is:

*Prohibited from reselling a vehicle it reacquired with alleged safety defects without informing the purchaser about the alleged defect(s) and certifying that the reacquired vehicle has been fixed,
*Prohibited from misrepresenting the purpose of an inspection or repair when directing consumers to bring their vehicles to a dealer for inspection or repair,
*Required to exclude from the “Toyota Certified Used Vehicles” or “Lexus Certified Pre-Owned Vehicles” categories any vehicle acquired through lemon law proceedings or voluntarily repurchased by Toyota to ensure customer satisfaction, and
*Required, for the next year, to consider consumer requests for reasonable and provable out-of-pocket expenses to reimburse consumers whose vehicles were part of Toyota’s “floor mat entrapment” or “sticky pedal” recalls and safety campaigns. The reimbursement may be for certain out-of-pocket expenses incurred due to the recall such as towing costs and rental car costs.

Gary Cordell, director of the TDCI Consumer Affairs Division, encourages anyone who has a complaint with Toyota or any business to file the complaint online, visiting the Division’s website at www.tn.gov/consumer/, or by calling the Division at (800) 342-8385 (toll-free in Tennessee) or (615) 741-4737. Consumers may also contact Toyota at 1-800-331-4331 between 7AM to 8PM Monday-Friday and 9AM to 6PM Saturdays; all times Central.

The State’s Complaint and Agreed Final Judgment may be found on the Attorney General’s website by going to www.tn.gov/attorneygeneral and clicking on “Filings of Interest.”

Tennessee Joins Lawsuit Against Standard and Poor’s

Press release from the Office of Tennessee Attorney General Bob Cooper, February 5, 2013:

Attorney General Bob Cooper today joined the Department of Justice and other state Attorneys General in filing enforcement actions against Standard and Poor’s and its parent company, McGraw-Hill, seeking accountability for alleged misconduct by the credit rating agency. The allegations involved structured finance securities backed by subprime mortgages that were at the heart of the nation’s financial crisis.

The federal and state complaints allege that despite S&P’s repeated statements emphasizing its independence and objectivity, S&P allowed its credit rating analysis to be influenced by its desire to earn lucrative fees from its investment bank clients. Investors and others in the marketplace relied on credit rating agencies like S&P for accurate ratings because the underlying data for these securities was not publicly available.

This alleged misconduct began as early as 2001, became particularly acute between 2004 and 2007, and continued as recently as 2011.

Structured finance securities backed by subprime mortgages were at the center of the financial crisis. These financial products, including residential mortgage-backed securities (RMBS) and collateral debt obligations (CDOs), derive their value from the monthly payments consumers make on their mortgages.

“The complaint filed in state court today alleges that investors as well as others in the market were misled by Standard and Poor’s promises that its analysis was independent and objective. Unfortunately, as the complaint alleges, this was not the case, and ratings of mortgage backed securities and collateral debt obligations were influenced by the desire to continue earning lucrative fees,” Attorney General Cooper said.

Tennessee’s lawsuit seeks relief to stop S&P from making misrepresentations to the public; change the way the company does business; and civil penalties and disgorgement of ill-gotten profits.

The congressionally-appointed bipartisan Financial Crisis Inquiry Commission concluded in its final report that the financial crisis “could not have happened” without ratings agencies such as S&P.

The State’s Complaint may be found on the Attorney General’s website by going to www.tn.gov/attorneygeneral and clicking on “Filings of Interest.”

TNDP: Federal Judge Sanctions ‘Birther’ Attorney for Frivolous Lawsuit

Press release from the Tennessee Democratic Party; August 28, 2012: 

U.S. District Court Judge S. Thomas Anderson, who dismissed in June a “birther” lawsuit challenging President Barack Obama’s place on the ballot in Tennessee, sanctioned Friday the plaintiffs’ attorney, Van Irion, for bringing a frivolous lawsuit.

In the suit, the Liberty Legal Foundation, a right-wing group led by Irion, a failed tea party congressional candidate, alleged that Barack Obama was ineligible to be president because he was not a “natural-born citizen.”

The judge wrote in his sanction of the Liberty Legal Foundation that the group had no legal standing to bring the suit, calling the claims “frivolous and without any arguable basis in law.”

“As such, counsel for Plaintiff has multiplied the proceedings in this case unreasonably and vexatiously and should therefore be required to satisfy personally the attorneys’ fees reasonably incurred by Defendants because of such conduct,” Judge Anderson wrote.

Gerard Stranch, an attorney for the Tennessee Democratic Party, a defendant in the suit, said defendants have 21 days to file an application for attorney’s fees and costs to be expended due to having the case dismissed.

“We are happy with the result and hope this brings an end to the ongoing litigation over President Obama’s qualifications,” Stranch said.

The Democratic Party, the DNC, DNC Chairwoman Debbie Wasserman Schultz, the Tennessee Democratic Party and TNDP Chairman Chip Forrester were named in defendants in the suit filed by the Liberty Legal Foundation, John Dummett, Leonard Volodarsky and Creg Maroney.

Feds Charge Texan for Bomb Threat to Murfreesboro Mosque

A Texas man has been indicted for threatening to bomb a planned Muslim community center in Murfreesboro.

Law enforcement say Javier Alan Correa, 24, of Corpus Christi, called the Islamic Center of Murfreesboro on Sept. 5, 2011, and said there was a bomb in the building that would explode on the anniversary of Sept. 11.

He has been charged with intentionally obstructing a free exercise of religion by threat of force and with using an instrument of interstate commerce to threaten to destroy a building with explosives, said Jerry Martin, U.S. Attorney for the Middle District of Tennessee.

Although Correa has not been taken into custody, the U.S. Attorney’s office is in communication with his legal counsel to discuss surrender, Martin said.

If convicted, Correa faces up to 20 years in prison.

The mosque’s approval in 2010 sparked protests and a lawsuit, even as construction has moved forward at the site southeast of Murfreesboro. A judge earlier this month ruled that the public notice for a meeting to approve the construction plans was inadequate, which has put in limbo plans to have a first section of the building open in time for Ramadan at the end of July.

Federal investigators are also still looking into an incident of arson at the site in 2010.

“These despicable acts are not only illegal, but are also completely contrary to our American way of life,” Martin said. “So let there be no question. If you interfere with anyone’s constitutionally guaranteed right to worship and assemble, you will face federal prosecution and severe penalties.”

In Nov. 2010, the Department of Justice also filed an amicus, or friend of the court, brief in relation to the ongoing lawsuit, in which plaintiffs had asserted that Islam is not a legitimate religion.

State AG Joins Lawsuit Against Apple, Electronic Book Publishers

Press release from the Office of Attorney General of Tennessee; April 11, 2012:

Tennessee Attorney General Bob Cooper and 15 state attorneys general today filed suit against three of the nation’s largest book publishers and Apple Inc. , alleging they colluded to fix the sales prices of electronic books (e-books). The suit was filed today in U.S. District Court in Austin, Texas. It cites the defendants for violating the States’ antitrust laws and the federal Sherman Antitrust Act.

“The ultimate result with price-fixing is that consumers pay more than they would have in a free marketplace,” Attorney General Cooper said. “Our joint lawsuit alleges three of the nation’s largest publishing companies worked together to gain control of retail prices, allowing publishers to raise the price of e-books.”

The States’ antitrust action stems from a two-year investigation in conjunction with the states attorneys general and the Department of Justice, into allegations that the defendants conspired to raise e-book prices. For years, retailers traditionally sold e-books through a wholesale distribution model, under which retailers rather than publishers set e-books’ sales prices. However, the investigation alleged revealed that Penguin, Simon & Schuster and Macmillan conspired with other publishers and Apple to artificially raise prices by imposing a distribution model in which the publishers set the prices for bestsellers at $12.99 and $14.99.

When Apple prepared to enter the e-book market, the publishers and Apple agreed to adopt an agency distribution model as a mechanism to allow them to fix prices. To enforce their price-fixing scheme, the publishers and Apple relied on contract terms that forced all e-book outlets to sell their products at the same price. Because the publishers agreed to use the same prices, retail price competition was eliminated. According to the States’ enforcement action, the coordinated agreement to fix prices resulted in e-book customers paying more than $100 million in overcharges.

Today’s action seeks to reverse the effects of the defendants’ anti-competitive conduct as well as pay damages for customers who paid artificially inflated prices for e-books.

The states have reached an agreement in principle with Harper Collins and Hachette to provide significant consumer restitution nationwide and injunctive relief.

Those participating in today’s enforcement action include Alaska, Arizona, Colorado, Connecticut, Illinois, Iowa, Maryland, Missouri, Ohio, Pennsylvania, South Dakota, Tennessee, Texas, Vermont and West Virginia.

TN AG to Craigslist: Shut Down ‘Adult Services’

Press Release from the Office of Tennessee Attorney General Robert E. Cooper, Aug. 24, 2010:

Tennessee Attorney General Joins in Call on Cragslist to Eliminate Adult Services Section

Attorney General Bob Cooper today joined 16 other state attorneys general asking craigslist to immediately take down the Adult Services portion of the site due to continued allegations of rampant prostitution advertisements and growing public frustration.

The multi-state letter, to craigslist CEO Jim Buckmaster and founder Craig Newmark, contends that if craigslist does not adequately screen these ads it must stop accepting them altogether and shut down the Adult Services section.

“The increasingly sharp public criticism of craigslist’s Adult Services section reflects growing allegations that ads for prostitution—including ads trafficking children—are rampant on it,” Attorney General Cooper said. “The company should take immediate action to help end exploitation of the women and children victimized as a result of these ads.”

“Your much-touted ‘manual review’ of Adult Services ads has failed to yield any discernable reduction in obvious solicitations,” the letter says.

“We recognize that craigslist may lose considerable revenue generated by the Adult Services ads,” the attorneys general said. “No amount of money can justify the scourge of illegal prostitution, and the suffering of the woman and children who will continue to be victimized, in the market and trafficking provided by craigslist.”

Even following its 2008 public pledge that it would better police its own site, the attorneys general allege that craigslist remains a hot spot for blatant prostitution ads.

In July 2010, two girls who said that they were trafficked for sex through craigslist wrote an “open letter” to craigslist officials, pleading for the elimination of the Adult Services section. The girls’ poignant account told a horrific story of brutalization and assault suffered not just by them, but also by untold numbers of other children, the attorneys general said.

The attorneys general termed recent blog posts and public statements from Buckmaster and Newmark, including a CNN interview, “deeply troubling” because they seem to imply that victims, law enforcement officials and children’s advocates are at least partially to blame for these incidents due to their failure to provide craigslist with police reports, ad copy or links documenting these heinous crimes.

The attorneys general said this position fails to acknowledge that craigslist is the only party positioned to stop these ads before they are published. While the perpetrators may eventually be apprehended and brought to justice, the victims — assuming they survive — could carry the scars for life, the attorneys general said.

Anyone who has information regarding possible illegal abuses of the website should contact local law enforcement.

Anyone who has complaints with any business regarding unfair or deceptive conduct may contact the Tennessee Department of Commerce and Insurance (TDCI) Division of Consumer Affairs at 1-800-342-8385 or online at www.tn.gov/consumer/.

Anyone who has information regarding possible illegal abuses of the website should contact local
law enforcement.
Anyone who has complaints with any business regarding unfair or deceptive conduct may contact
the Tennessee Department of Commerce and Insurance (TDCI) Division of Consumer Affairs at 1-
800-342-8385 or online at www.tn.gov/consumer/.

Black Setting Her Sights on November

Tennessee state election officials plan to review Rutherford County’s failure to open the polls on the first Saturday of early voting, although it appears that the hearing will not change local election results.

The most high-profile race in the district ended in a near three-way dead-heat for the GOP nomination in the 6th Congressional District. The apparent winner, state Sen. Diane Black, edged both her opponents — state Sen. Jim Tracy and Lou Ann Zelenik, a Murfreesboro businesswoman — by less than 600 votes.

Another similarly balled up race among Democrats for the same congressional seat boiled down to about 200 votes. Brett Carter, an Iraq War veteran from Gallatin, led with 9,429 votes, followed by Ben Leming at 9,207 votes and Henry Barry with 8,814, according to unofficial results.

However, none of the candidates have filed complaints with either Rutherford County nor the state’s election office over the missing early-voting day, officials say.

Furthermore, Zelenik told supporters Tuesday she would accept defeat if the votes showing her losing 24,373 to 24,089 remained unchanged by the time the results are certified.

“With county certification nearing completion, and assuming the vote margin remains the same, I congratulate Diane Black on her victory,” she wrote to her supporters.

Rutherford County elections officers failed to open poll places on July 17, the first Saturday of early voting.

The Tennessee Election Commission plans to question officials from Rutherford County — and Hawkins County, which also failed to open the polls that day — at its Sept. 21 meeting before deciding what, if any, reprimand it will issue.

“In our view, a violation of state election law is a big deal and counties are all supposed to be following the same law,” said Secretary of State spokesman Blake Fontenay.

But the commission cannot overturn election results, Fontenay said.

Rutherford County Election Administrator Hooper Penuel argues early voters still had plenty of time to weigh in, and that the three missing hours on the Saturday in question would have made little or no difference in the final tallies.

“We were open more hours and more locations than any other voting site in the (6th Congressional) district,” he said, adding that the county’s six polling places were open for more than 500 hours for early voting.

For her part, Black said she’s confident she is — and will remain — the GOP nominee, and she’s moving on.

“The state is moving forward and the county is moving forward to certify the election, as they are required by law,” Black said Monday. “We don’t anticipate there will be any changes from what was announced on (primary election day).”

Nevertheless, as Black faces off in the Nov. 2 general election against Carter to replace retiring Democrat U.S. Rep. Bart Gordon, she and her husband may also still be fighting Zelenik in court.

Aegis Sciences Corp., a drug testing company run by Black’s husband, David Black, sued Zelenik and her campaign last month for airing what it claimed was an untrue commercial depicting Sen. Black handing off a jumbo check for $1 million to her husband accepting it on behalf of the corporation.

Ageis failed to convince the Davidson County judge in the case to order Zelenik to pull her ad. Black, a small business owner and registered nurse, released her own TV ad combating Zelenik’s.

Less than a week after the primary election, Zelenik filed a lawsuit of her own, calling the Aegis lawsuit “frivolous,” and demanding Black and her husband’s company pay Zelenik’s attorney costs and other damages. Further hearings on the case have not yet been scheduled.

Mark Todd Engler contributed to this report.

Senate Urges AG Cooper to Join ObamaCare Legal Fray

The Senate voted 21-8-1 for a resolution Monday night asking state Attorney General Robert Cooper to join other states in contesting the federal health care bill on the grounds it is unconstitutional.

The vote follows the lead of Lt. Gov. Ron Ramsey, R-Blountville, who is fighting hard against an element of the bill that mandates participation in the federal plan, which Ramsey says is an unconstitutional requirement. The resolution, SRJ897, now moves to the House, where it is expected to be taken up this week and would be on the House floor next week.

Also on Monday night, on the other side of the Capitol, the House of Representatives passed a resolution denouncing the federal health care law after debating for almost two hours.

Dozens of lawmakers rose to speak out for and against the resolution. Those who opposed the resolution said they were primarily concerned for their constituents with preexisting medical conditions who can’t find private insurance. Supporters of the measure railed against officials and lawmakers in Washington, D.C. for overstepping their constitutional authority and meddling in affairs properly left to the states to address.

That resolution passed 66-29.

The national discussion on the federal bill shows what would appear, on the surface, to represent a concerted effort between the states to organize a legal resistance, but Ramsey said he has not tried to contact leaders in other states about the matter. Ramsey also said Monday night he had not spoken to Cooper since about a week ago on the issue.

He did, however, say his office has received some contact from Nevada, the home state of Senate Majority Leader Harry Reid in the U.S. Senate, and received calls from “a couple of others,” but Ramsey said those calls had been to his staff and he had personally not spoken with the callers.

“This resolution urges our attorney general to join what’s now 19 attorneys general in the United States and challenge the constitutionality of the health care plan,” Ramsey said. “It’s unprecedented that the federal government is requiring a private citizen to enter into a transaction with a private company and buy health insurance. That’s never been done. There’s no precedent. I do believe that’s unconstitutional. I hope Attorney General Cooper decides to join in with other states.”

Ramsey makes no bones about the fact that the new law, constitutional or not, carries with it a large unfunded mandate on the state. Ramsey is a candidate for governor in the Republican primary, and he says his position on the federal statute is not about his gubernatorial candidacy. But he openly admits he does not want to face the financial burden he says the law would bring on the next governor.

Speaking with reporters outside the Senate chamber following the vote Monday, Ramsey was asked if he believed Cooper would fight the federal bill if the attorney general went with the will of the people, but Ramsey quickly said it should not happen on that basis.

“I hope he doesn’t come down with the will of the people. I hope he does it because it’s the right thing to do,” he said. “So I don’t know. I do believe the will of the people out there is to challenge the constitutionality of this. People are upset. We have an overreaching federal government that’s trying to take over one-sixth of our economy.

“I know I’m upset, because I do want to be the next governor of the state of Tennessee. We’re going to have about a $250-million unfunded mandate. I learned something a long time ago. If the federal government gives you an estimate, add at least 50 percent to that. I think it’s a budget breaker here in Tennessee.”

Ramsey pointed to bipartisanship shown in the 3-to-1 margin in the Senate vote, and he is hopeful the attorney general will join the fight.

“I think the same thing will happen in the state House,” he said. “I know he has said he may not join in, but I think with an overwhelming vote like that, hopefully, he will.”

Ramsey has repeatedly made the distinction between his effort to have the law found unconstitutional and Cooper’s opinion recently that he could not support the Tennessee Health Freedom Act, a bill in the General Assembly, because that bill would bump up against the overriding authority of the federal government.

Ramsey says the earlier opinion from the attorney general was that he could not challenge the law based on those grounds but that Cooper has never said specifically whether the federal law is constitutional or not. That’s what Ramsey seeks to clarify.

Ramsey has said it is possible he would seek special counsel on the issue but that he his hopeful Cooper will join in the constitutional challenge.