          United States Court of Appeals
                      For the First Circuit

No. 10-1761

                    CASSANDRA HAWKINS, ET AL.,

                      Plaintiffs, Appellants,

                                v.

              DEPARTMENT OF HEALTH AND HUMAN SERVICES
                  FOR THE STATE OF NEW HAMPSHIRE,
                            Commissioner

                       Defendant, Appellee.




          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF NEW HAMPSHIRE

      [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]




                              Before

           Torruella, Selya and Lipez, Circuit Judges.




     Kay E. Drought for appellants.
     Danielle L. Pacik, Assistant Attorney General, with whom
Michael A. Delaney, Attorney General, and Nancy L. Smith, Senior
Assistant Attorney General, were on brief, for appellee.




                         January 13, 2012
       LIPEZ,    Circuit    Judge.   In    August   2003,    the    New   Hampshire

Department of Health and Human Services (the "Department") and a

certified class of Medicaid-eligible children (the "Class") reached

a settlement agreement and proposed a consent decree (the "Decree")

that       outlined   the   Department's    obligations     to     provide    dental

services to Medicaid-enrolled children in accordance with federal

law.       The district court approved the Decree on January 26, 2004.

Between January 2007 and January 2010, the Class filed four motions

in   the     district   court,   alleging    that   the     Department       was   not

complying with its obligations under the Decree and seeking various

remedies.       The district court denied each of the motions.

       On appeal, the Class claims that the district court (1) erred

by requiring the Class to file a motion for contempt 1 to enforce the

Decree; (2) abused its discretion by denying the Class's 2010 motion

for contempt; (3) abused its discretion by denying the Class's

request for an evidentiary hearing in 2010; and (4) erred by holding

the Class to a clear and convincing burden of proof on its 2010

motion to modify or extend the Decree. 2         After careful review of the

record, we affirm.

       1
       "Motion for contempt" is used as shorthand throughout this
opinion for what is technically a motion to show cause why the
defendant should not be adjudged in contempt.
       2
      Throughout this opinion, we refer to the Class's 2010 motion
entitled "Motion for Modification of Consent Decree Based on the
Defendant's Noncompliance with Federal Medicaid Law, or, in the
Alternative, for an Order Extending the Terms of the Decree Based
on the Defendant's Lack of Required Compliance" as the "motion to
modify or extend the Decree."

                                       -3-
                                  I.

     In 1999, three mothers filed a proposed class action against

the Department on behalf of their Medicaid-eligible children.

Plaintiffs sought dental services for children in New Hampshire3

under Title XIX of the Medicaid Act, which requires participating

states to administer a health services plan that meets federal

requirements,    including   provision   of   an   Early   and   Periodic

Screening, Diagnosis, and Treatment ("EPSDT") program.            See 42

U.S.C. §§ 1396a(a)(43)(B), (C); Frew v. Hawkins, 540 U.S. 431, 433

(2004).   A state's EPSDT program must include dental services.

Rosie D. v. Swift, 310 F.3d 230, 232 (1st Cir. 2002).

     After years of mediation and litigation, the parties reached

a settlement in September 2003.    The district court certified the

plaintiffs as a class in January 2004 and approved the proposed

Decree the same month.   Under the terms of the Decree, the district

court retained jurisdiction over the action for five years from the

date of decree approval.      On January 8, 2009, approximately two

weeks before the five year period was set to       expire, the parties

agreed to modify the Decree by extending the court's jurisdiction

by six months.    At the end of the extension, the court retained



     3
       The district court found that there were more than 55,000
Medicaid-eligible children in New Hampshire in May 2003.        The
certified class includes "all persons under age 21 who are now
enrolled, or who become enrolled during the term of this Decree, in
the New Hampshire Medicaid program and are, or become, entitled to
receive EPSDT dental services."

                                  -4-
jurisdiction for another six months to determine whether the

Department was in compliance during the five years and six months

of the primary term and, if not, what remedies were available.

     Throughout the early years that the Decree was in place, the

parties engaged in disputes over the Department's compliance.           In

October 2006, the district court appointed a mediator to help

resolve the parties' differences.         When the mediation failed, the

Class filed a motion to enforce in January 2007. In August 2007,

the motion was denied without prejudice to the right of the Class

"to file a properly supported motion for appropriate relief."          The

district court specified that enforcement of the Decree required

invocation of the court's contempt power.

     The Class again sought enforcement of the Decree in 2008 by

filing a motion for contempt, alleging that the Department was

failing to provide (1) eligible families with accurate information

about dentists who had openings for Medicaid patients, (2) timely

dental care to eligible children, and (3) orthodontic care in all

of New Hampshire's counties. The district court denied the motion,

finding   insufficient   "factual     support   for   each   element   [of

contempt] to meet the clear and convincing standard of proof."         At

the same time, the district court "put [the Department] on notice

that it is required to update its provider [l]ist every ninety

days" and that "[f]ailure to do so . . . [would] result in a

finding of contempt."


                                    -5-
      In 2010, the Class filed another motion for contempt and a

motion    to    modify   or   extend     the   Decree    based    on   alleged

noncompliance with the same three requirements set out in the 2008

motion.   The district court found that the Class had again failed

to prove that the Department was noncompliant.                In its analysis,

the district court applied the clear and convincing evidentiary

standard,      but   stated   that     even    under    the    less    exacting

preponderance standard, the Class had not met its burden of proof.

The district court denied both motions.

      The Class now appeals the denials of the 2010 motions.4                We

address each in turn.

                                       II.

A.   Enforcement of the Consent Decree by Filing a Motion for
     Contempt5

      The Class argues that the district court erred by requiring

the Class to file a motion for contempt to enforce the Decree, with


     4
       Although the 2008 Order was listed in the Notice of Appeal
filed on June 17, 2010, the Class does not argue on appeal the
denial of its 2008 motion for contempt, which raised essentially
the same issues as the 2010 motion. Accordingly, we do not address
it here.
     5
       At oral argument we asked the parties to file supplemental
briefs discussing whether we could address in this appeal from the
denial of the 2010 motion for contempt the district court's ruling,
in its denial of the 2007 motion to enforce, that enforcement of
the Decree could only be sought by filing a motion for contempt.
For present purposes, we assume, without deciding, that the 2007
order was not immediately appealable and that the district court's
insistence on the filing of a motion for contempt to enforce the
Decree is properly challenged in this appeal.

                                       -6-
its requirement of proof by clear and convincing evidence.                       As the

Class put it, "Due to the district court's insistence on a contempt

proceeding, the Children faced an arbitrary and unreasonably high

bar   in   bringing    Decree        noncompliance      issues     to   the     court's

attention over the life of the Decree."                We find no support in the

Decree or the case law for the Class's insistence that it did not

have to file a motion for contempt to remedy the Department's

alleged noncompliance with the Decree.

      Under    the     terms     of        the    Decree,   the    party      alleging

noncompliance is charged with bringing the issue to the court's

attention     by   either      (1)    a     motion    for   contempt,      or    (2)    a

stipulation:

      The Court shall also retain jurisdiction over this action
      for an additional sixth year to determine whether or not
      the Defendant was in compliance with the Decree during
      the previous five years of the Decree and if not, what
      remedy or remedies are appropriate if requested by the
      filing of a motion for contempt or by stipulation of the
      parties prior to the end of the sixth year.

Decree Section I (emphasis added).                    The Decree repeats these

options elsewhere in Section I:

      If no motion for contempt or stipulation is filed, the
      parties agree that the case shall be dismissed from the
      Court's docket at the conclusion of the sixth year or any
      extension of federal Court jurisdiction.

Id.   (emphasis      added).         The    remedial    measures    designated         in

Section I differ from other mechanisms identified in the Decree.

For example, under Section II, modification of the decree may be


                                            -7-
"sought by motion or stipulation."     This distinction suggests that

an ordinary motion is sufficient for modification, whereas a

request to enforce the original terms of the Decree must take the

form of a motion for contempt.

     The Class points to language in the Decree stating that "if

the parties cannot agree" whether the Department is in compliance

with the Decree, "[t]hen either party may ask the Court to resolve

the dispute, including but not limited to ordering the Department

to take further actions designed to achieve compliance with this

Decree and with federal law."    Decree Section XII(B).    The Class

suggests that this language "demonstrates that the parties intended

the trial court to have available as an enforcement tool the entry

of remedial orders as needed."    We do not read this provision to

create a distinct enforcement mechanism.        The quoted language

follows language requiring the parties to meet outside of court to

discuss compliance concerns before engaging the court.        Decree

Section XII(B).   In this context, we read the quoted language to

mean that the parties may seek enforcement from the court if

negotiations fail.    Other provisions in the Decree specify the

mechanism by which the parties must seek enforcement from the

court.   As noted, those provisions make clear that a party seeking

enforcement must do so through a motion for contempt.     See Decree

Section I.




                                 -8-
     Moreover, it is well settled in the law that a motion for

contempt is the proper way to seek enforcement of a consent decree.

Brewster v. Dukakis, 675 F.2d 1, 3 (1st Cir. 1982) (stating that

enforcement of a consent decree is sought by "an action for

enforcement (i.e., contempt)"); see also, e.g., Whitehouse v.

LaRoche,    277   F.3d   568,   578   n.6   (1st   Cir.   2002);   Martel   v.

Fridovich, 14 F.3d 1, 3 n.4 (1st Cir. 1993); Johnson v. City of

Tulsa, 489 F.3d 1089, 1103-04 (10th Cir. 2007); NLRB v. Ironworkers

Local 433, 169 F.3d 1217, 1219 (9th Cir. 1999); United States v.

O'Rourke, 943 F.2d 180, 189 (2d Cir. 1991); DeGidio v. Pung, 920

F.2d 525, 534 (8th Cir. 1990); Green v. McKaskle, 788 F.2d 1116,

1123 (5th Cir. 1986).6      Hence, the district court did not err by

insisting that the Class seek enforcement through a motion for

contempt.

B.   Denial of the 2010 Motion for Contempt

     We review the denial of a motion for contempt for abuse of

discretion.   See Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper



     6
       The Class asserts that the use of the phrase "motion to
enforce" in Frew, 540 U.S. at 435, 439, shows that a mechanism
other than invocation of the contempt power is available to enforce
consent decrees. The label given to a motion to enforce a consent
decree does not control the legal requirements applicable to such
a motion, including the requirement of proof of noncompliance by
clear and convincing evidence. Moreover, in discussing the motion
to enforce, the Frew Court relied on a case that states that
"noncompliance with a consent decree is enforceable by citation for
contempt of court." Id. at 439 (citing Firefighters v. Cleveland,
478 U.S. 501, 518 (1986)).

                                      -9-
(In re Grand Jury Investigation), 545 F.3d 21, 24 (1st Cir. 2008)

(citing Langton v. Johnston, 928 F.2d 1206, 1220 (1st Cir. 1991)).

To prove civil contempt, a movant must show that (1) the alleged

contemnor had notice of the order, (2) "the order was clear and

unambiguous," (3) the alleged contemnor "had the ability to comply

with the order," and (4) the alleged contemnor violated the order.

United States v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005)

(internal quotation marks omitted). As noted, the movant must make

this demonstration with clear and convincing evidence.            See, e.g.,

Islamic   Inv.   Co.   of   the   Gulf   (Bah.)   Ltd.,   545   F.3d   at   25;

Saccoccia, 433 F.3d at 27.7

     The parties do not contest that the first three prongs of the

contempt inquiry are satisfied.            They contest only whether the

Department violated the Decree.          The Class alleged three varieties

of noncompliance in 2010, asserting that the Department violated

its duty to (1) effectively inform Medicaid participants of the


     7
       Even if the plaintiff is able to prove each of the elements,
a court may exercise its discretion and decline to make a finding
of contempt where the defendant has been substantially compliant
with the terms of the underlying order. AccuSoft Corp. v. Palo,
237 F.3d 31, 47 (1st Cir. 2001); Langton, 928 F.2d at 1220 (citing,
inter alia, Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516
(11th Cir. 1990) ("Conduct that evinces substantial, but not
complete, compliance with the court order may be excused if it was
made as part of a good faith effort at compliance."); Balla v.
Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989)
("Substantial compliance with a court order is a defense to an
action for civil contempt.")). The district court's denial of the
motion for contempt did not rest on findings of substantial
compliance.

                                    -10-
dental    EPSDT    program,     (2)     provide    reasonably     prompt    dental

assistance, and (3) provide statewide dental assistance.                   Taking

each in turn, we consider whether the district court committed

error by finding that the Class had not proved by clear and

convincing    evidence    that         the     Department's    performance    was

deficient.   We then consider whether the district court abused its

discretion by refusing to hold an evidentiary hearing on the

contempt motion.

     1.    Duty to Effectively Inform Medicaid Participants of
           the EPSDT Program

     Under the terms of the Decree, the Department must comply with

federal Medicaid law.         Federal law requires the Department to

inform eligible persons "of the availability of early and periodic

screening,   diagnostic,      and      treatment     services,"    42   U.S.C.   §

1396(a)(43)(A), including dental services, 42 U.S.C. § 1396d(r)(3);

see also Rosie D., 310 F.3d at 232.

     The    Decree    expands     on     the    Department's    obligations      by

requiring    the     Department         to     provide   "reasonably       current

information" to Class members as to whether dental offices are

accepting new Medicaid patients.                In 2008, the district court

interpreted this requirement to mean that the Department must

update its provider information list at least every 90 days.8


     8
       In its order denying the Class's 2008 motion for contempt,
the district court expressed concern about the currency of the
information available to Class members. The Class presented no

                                        -11-
      The Class argues that the Department did not comply with its

information obligation between 2004 and 2008 because it failed to

inform patients effectively about which dentists had openings. The

Class also argues that the Department remains out of compliance

because     it   does   not   list    the     number   of   openings   at   offices

accepting new Medicaid patients.

      Civil contempt is a forward-looking penalty meant to coerce

compliance rather than to punish past noncompliance. See McComb v.

Jacksonville Paper Co., 336 U.S. 187, 191 (1949); United States v.

United Mine Workers, 330 U.S. 258, 303-04 (1947); United States v.

Puerto Rico, 642 F.3d 103, 108 (1st Cir. 2011).               In its 2010 motion

for   contempt,     the    Class     sought    to   coerce   such   compliance.

Nevertheless, the Class argues that a provision in the Decree

required the court, in considering the contempt motion generally,

to review the Department's level of compliance over the entire term

of the Decree.9         Indeed, at oral argument, counsel for the Class


evidence of noncompliance with the 90-day requirement in 2010, and
the district court expressed no concern in its 2010 order denying
the motion for contempt.
      9
          After being amended in 2009, Decree Section I stated that

      [t]he Court shall . . . retain jurisdiction over this
      action for an additional six months to determine whether
      or not the Defendant was in compliance with the Decree
      during the previous five years and six months of the
      Decree and if not, what remedy or remedies are
      appropriate if requested by the filing of a motion for
      contempt or by stipulation of the parties prior to the
      end of the sixth year.


                                        -12-
suggested that the Class's 2010 motion for contempt should have

been    granted      based    on   the   Department's   alleged   noncompliance

between 2004 and 2008. Although evidence of any noncompliance from

2004 to 2008 was certainly relevant to consideration of the Class's

motion, the district court could properly focus on the Department's

current compliance with the Decree, and whether any measures had to

be taken to achieve the level of compliance sought by the Class.10

       On the particular issue of effectively informing Medicaid

participants of the EPSDT program, the district court rejected the

Class's allegation of noncompliance for failing to list the number

of openings at dental offices accepting new Medicaid patients. The

court reasonably concluded that including the number of openings

could       result   in     the   list   becoming   outdated   well   before    the

Department's         next    quarterly    update,   making   inclusion   of    this

information unlikely to improve the list's accuracy.



       10
        In some instances, a finding of civil contempt may be
imposed to compensate a party harmed by noncompliance.       Puerto
Rico, 642 F.3d at 108; see also United Mine Workers, 330 U.S. at
303-04 ("Judicial sanctions in civil contempt proceedings may, in
a proper case, be employed for either or both of two purposes: to
coerce the defendant into compliance with the court's order, and to
compensate the complainant for losses sustained."). The Class did
not seek compensation for its members; it sought only to coerce
compliance. Thus, the district court properly focused on current
compliance. See id. at 304 (noting that while compensation must be
based on the actual loss caused by past wrongs, a court seeking to
coerce compliance properly looks forward and "consider[s] the
character and magnitude of the harm threatened by continued
contumacy, and the probable effectiveness of any suggested sanction
in bringing about the result desired").

                                          -13-
     Moreover, there is no language in the Decree requiring the

Department to collect information from providers about the number

of openings in each office or to include that information in the

Department's provider list.       The Decree includes a significant

level of detail on the information about dental providers that the

Department must give Class members.        For example, the Department

must relay the names and phone numbers of three to six dental

providers to all eligible, non-emergency callers and supply a

"reasonably current" list of dentists, dental offices, and dental

clinics with openings for new Medicaid patients.               See Decree

Section VII(F)(1). Nowhere does the Decree specify that the number

of openings at an office should be included on the provider list.

Because the Department is not required to provide the number of

openings, its failure to do so did not constitute contempt.

     2.    Duty to Provide Reasonably Prompt Medical Assistance

     Both Section VII(B) of the Decree and federal law require the

Department to provide medical assistance to eligible individuals

with reasonable promptness.      See 42 U.S.C. § 1396a(a)(8).        Under

the terms of the Decree, the Department is obligated to "arrange

for provision of dental screenings using a periodicity schedule of

every six months."        Decree Section VII(B).        In an effort to

facilitate provision of EPSDT program services, the Department

notifies eligible families of the availability of the program and

provides    them   with   information    about   a   variety   of   program

                                  -14-
components, including, for example, transportation and scheduling

assistance services.      Decree Section VIII.              The Department also

contacts Class members to "advise of the importance of preventive

oral health care" and, among other things, to "remind the Class

[m]embers that it is time to schedule a dental check-up/exam."

Decree Section VIII(a)(1), (2).            After contacting Class members

with this type of information, the Department relies on them to

request available services.           A request for services, in turn,

triggers additional obligations on the part of the Department to

provide services with reasonable promptness.                For example, when a

Class member "contacts the Department's Medicaid Client Services

Unit to request a dental screening," the Department must "use its

best efforts to ensure that [the Class member] receives a dental

screening from a dental provider within ninety (90) days of the

initial request for such service."            Decree Section VII(B).

     The Class argues that the Department's responsibility to

provide a    six-month   screening      within    ninety      days of    a   Class

member's request for one does not define the full scope of the

Department's promptness obligations.             Instead, the Class argues

that the Department has an affirmative duty to ensure that eligible

children    receive   services   in    a     timely   and    effective   manner,

regardless of whether services are requested.                Stating that it is

unfair to place "legal responsibilities on indigent families to

'trigger' their children's rights to any dental services," the


                                      -15-
Class       maintains   that    the    Department       must   "assure   that   these

services are actually provided to children."                       The Class cites

evidence that approximately 40 percent of eligible children are not

receiving regular dental screenings.11                   It also cites a survey

conducted by the University of New Hampshire Survey Center in early

2008        showing   that     14   percent        of   Medicaid-enrolled       survey

participants expressed some level of dissatisfaction with the ease

of scheduling and the timeliness of receiving dental services.

       The Department maintains that reasonable promptness should be

measured from the time that services are requested.                      Siding with

the Department, the district court found that

       [b]ased on the plain meaning of Section VII(b), the
       'reasonable promptness' requirement for screenings is
       triggered by a request made by a Class member and does
       not exist until a request is made. Therefore, statistics
       about how many children have received dental services,
       without detail about how many contacted the Department
       for screenings and the time taken to provide screenings,
       may provide some evidence of a lack of reasonable
       promptness but does not provide clear and convincing
       evidence of noncompliance.

The    Class     misinterprets        the   district     court's   statement     that

"statistics about how many children have received dental services

. . . may provide some evidence of a lack of reasonable promptness"



       11
       The data are from a "program measure report" provided by the
Department pursuant to Section XI(A) of the Decree.       The data
indicated that of the 58,309 Class members continuously enrolled in
Medicaid during State Fiscal Year 2009, 59.7 percent received the
preventive services described in Section XI(A)(6)(b)(iii) of the
Decree.

                                            -16-
to mean that the district court found the Department at least

partially noncompliant. Instead, the district court found that the

statistics,        though    relevant    to    the     compliance      issue,     were

insufficient to prove the Class's claim.                    In fact, the district

court found that

      [t]he survey results cited by the Class . . . tend to
      indicate that the Department is providing the services
      covered by the survey with reasonable promptness.

      We agree with the district court that the Decree itself

incorporates the request-based timeliness assessment by imposing a

90-day deadline on action to fulfill a request for a dental

screening. See Decree Section VII(B). Moreover, the vague concept

of   timeliness      proposed    by    the    Class    is    unworkable.        Beyond

notification efforts, we cannot envision how the Department would

ensure     that    eligible    individuals       submit     to    services.12      The

Department        cannot    compel    families    to    use      the   program,    and

timeliness cannot be measured when services are never requested or

performed.

      We also agree with the district court that the fact that up to

40 percent of eligible children were not receiving services is

insufficient to demonstrate by clear and convincing evidence that

the Department is failing to provide services with reasonable



      12
       The Class does not explain how the Department might provide
services to eligible children whose families do not request them.
It simply insists that it do so.

                                        -17-
promptness.      The     Class    did    not    provide       statistical     evidence

regarding how many eligible children actually requested services.

Given the absence of that far more probative evidence, the Class

failed to make its case for noncompliance with the reasonable

promptness requirement.13

      Although we share the district court's concern that 14 percent

of survey participants expressed dissatisfaction with the ease of

scheduling and the timeliness of receiving dental services, we note

that this level of dissatisfaction was not unique to Class members.

When the length of a patient's relationship with a dental office

was   taken   into     account,    the    survey      found    that   there    was   no

significant    difference        among   the    three     sampled     populations    -

Medicaid      participants,        commercially         insured       or    uninsured

individuals,     and    subscribers       to    the    State    Children's      Health

Insurance Program.14      Under the terms of the Decree, the Department

may not be required to provide services in a shorter timeframe than

      13
       In its 2008 order, the district court found that a large
percentage of eligible children were not receiving dental
screenings. Although the court put the Department "on notice" that
its procedures needed improvement, it held that the statistical
evidence regarding receipt of dental services was insufficient,
standing alone, to show that the Department was not providing
services with reasonable promptness. In 2010, the district court
observed that since its 2008 admonition, the Department had
demonstrated "improvement in [its] efforts and an increase in the
number of Class members receiving services."
      14
       The State Children's Health Insurance Program is also known
as the New Hampshire Healthy Kids Silver program. It provides low-
cost health and dental coverage for uninsured children in families
whose income is above the limit for Medicaid.

                                         -18-
is available to privately insured parties.      See Decree Section VII

("The timeliness requirements described herein are subject to

market conditions and in no event shall the Department be required

to provide the assistance or services described in a shorter

timeframe than would be available to a privately insured person.").

     3.   Duty to Provide Statewide Medical Assistance

     In its 2008 motion for contempt, the Class argued that the

Department   was   noncompliant   with   its   obligation   to   provide

orthodontic services to all Class members. Specifically, the Class

took issue with the Department referring Class members who lived in

three northern counties, in which there were no participating

orthodontists, to orthodontists in other parts of New Hampshire.

The Class argued that such referrals resulted in significant travel

burdens for some Class members, and that such burdens rendered the

Department noncompliant with its obligation to implement a plan

that makes medical and dental assistance available statewide. 42

U.S.C. § 1396a(a)(1); 42 C.F.R. § 431.50.      The Department did not

dispute that the lack of orthodontists in the three northern

counties made those services less readily available to Medicaid

patients in that part of the state.15     However, because the Class

did not present evidence that the Department had the ability to



     15
       Though not required under a statewide plan, the Department
had orthodontists available in each county by the time of the 2010
contempt motion.

                                  -19-
provide orthodontic services in those counties, the district court

found that the Class did not show by clear and convincing evidence

that the Department was noncompliant with is orthodontic services

obligations.

     In its 2010 motion for contempt, the Class again contended

that the Department was noncompliant with the statewide requirement

because certain Class members had to travel significant distances

to see an orthodontist. Under federal law, states participating in

Medicaid must submit for approval a plan that will be effective "in

all political subdivisions of the State, and, if administered by

them, be mandatory upon them."     42 U.S.C. § 1396(a)(1).    Under

federal regulations, that plan must "be in effect throughout the

State" and "in operation statewide." 42 C.F.R § 431.50(a)-(b)(1).

The district court found that neither of these provisions, nor the

Decree, requires the Department to provide services within a

certain driving distance.   We agree.   The Department's failure to

provide orthodontic services to Class members within a specific

geographic distance did not constitute contempt.

     4.   The Request for an Evidentiary Hearing

     We review the district court's refusal to hold an evidentiary

hearing for abuse of discretion.   See United States v. Comunidades

Unidas Contra la Contaminacion, 204 F.3d 275, 278 (1st Cir. 2000).

Although the Class now emphasizes that it was denied an evidentiary

hearing, its motion for contempt included only a cursory request

                               -20-
for such a proceeding.       In its memorandum of law in support of the

contempt motion, the plaintiffs requested an evidentiary hearing

because     they   were   "prepared   to       present    additional   cumulative

factual support for the relief requested" (emphasis added).16                    The

Class did not reveal the evidence it was prepared to offer.

       Where the moving party fails to indicate that it possesses new

material evidence that it wishes to present to the court, an

evidentiary hearing is not required.                    Cf. Gonzalez-Sanchez v.

United States, No. 91-1561, 1992 U.S. App. LEXIS 28914, at *11 (1st

Cir.    1992)(unpublished)     ("No[]      .    .   .   evidentiary    hearing   on

petitioner's motion to hold the government in contempt [was]

required, for petitioner did not indicate he had any material

evidence to present.").        To the extent that the Class asks us to

hold that the mere request for an evidentiary hearing entitles a

party to one, we decline.17




       16
        Plaintiffs made two other succinct requests for an
evidentiary hearing. The opening paragraph of the 2010 motion for
contempt states: "Plaintiffs seek an evidentiary hearing." At the
end of the same motion, within a list of ten requests for relief,
the Class asked the court to "[c]onduct an evidentiary hearing."
Neither request is accompanied by a proffer or an elaboration on
the request.
       17
       Because the Class's 2007 motion to enforce, its 2008 motion
for contempt, and its 2010 motion for contempt were nearly
identical, the Class's 2010 motion for contempt was effectively its
third opportunity to present relevant facts and arguments to the
district court.

                                      -21-
C.   The 2010 Motion to Modify Or Extend the Consent Decree

      In conjunction with its 2010 motion for contempt, the Class

moved to modify or, in the alternative, extend the Decree.             In its

2010 order denying the motion, the district court characterized the

Class's requests as follows:

      The Class asks the court to modify the Consent Decree by
      extending its duration, arguing that the Department
      agreed to comply fully with federal law and has failed to
      do so.    The Class also asks that the Department be
      ordered to prepare a remedial plan that would address the
      Department's violations of federal law and to impose an
      injunction requiring the Department to comply with its
      obligations under Medicaid.

The district court refused to impose an injunction or extend the

Decree,    finding   that   "the   Class   did   not   meet   its   burden   of

establishing that the Department [wa]s violating the terms of the

Decree or Medicaid laws, a requirement for civil contempt."

      1.   Modification of the Decree

      The Class argues that the district court erred by applying the

clear and convincing evidence standard to the motion to modify. It

is far from clear what aspect of the Decree - other than the term

of the court's jurisdiction - the Class wished to modify.               As we

read the Class's motion, it sought, in essence, to enforce and

extend the Decree in light of alleged violations of federal law and

the Decree.    Hence, in substance, the motion to modify raised the

same compliance issues as the motion for contempt.             Because those

issues could only be properly raised in a motion for contempt and


                                    -22-
considered under the clear and convincing evidence standard, there

were no discrete issues related to modification to consider under

the lesser preponderance of the evidence standard urged by the

Class.      Moreover,   in   Section    I,    the   Decree   outlines   the

circumstances in which modification is appropriate:

     In the event that the actions taken hereunder are not
     effective in meeting and maintaining the requirements of
     federal law . . . it is intended that the issues be
     addressed promptly or in the annual meeting under
     ¶ XII(B), and if necessary, that modification of this
     Consent Decree be properly sought by motion or
     stipulation.

Under the terms of the Decree, modification is only appropriate if

the Department fails to meet or maintain the requirements of

federal law.   In considering the Class's 2010 motion for contempt,

the district court did not find any violations of either federal

law or the Decree by the Department.         Thus, the district court was

justified in denying the motion to modify on the basis of its

findings.

     2.   Extension of the Decree

     The Class also sought to extend by three years the court's

jurisdiction over the Decree.          The Class again argues that the

district court erred by holding the Class to a clear and convincing

standard of proof on its motion to extend the Decree, when the

appropriate standard was a preponderance of the evidence. However,

as described above, the district court explicitly stated that the

Class failed to meet its burden of proof on the noncompliance

                                  -23-
issues even under the standard the Class urges - the preponderance

standard. We therefore need not dwell on the appropriate burden of

proof applicable to the extension request.

      Section I of the Decree permits extension of the court's

jurisdiction "for whatever time is directed by the Court upon a

showing that substantial compliance with the provisions of the

Decree has not been achieved." The district court did not directly

address the extension provision of the Decree.           Instead, focusing

on the distinct modification provision of the Decree, the district

court framed the issue as "[t]he Class ask[ing] the court to modify

the Consent Decree by extending its duration."

      To the extent that the court erred by not applying the

extension provision of the Decree, that error was inconsequential.

The   extension     provision   requires   the   Class    to   show   "that

substantial compliance with the provisions of the Decree has not

been achieved." In pursuing its contempt and modification motions,

the Class was unable to show that the Department was noncompliant

at all with its obligations under federal law and the Decree.            In

the absence of such a showing, the district court did not err in

denying the motion to extend the Decree.

                                   III.

      For the foregoing reasons, the judgment of the district court

is affirmed.

      So ordered.

                                   -24-
