Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 1 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

THE UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

)

THE STATE OF MISSISSIPPI,

)

)

Defendant.

)

__________________________________ )

COMPLAINT
3: Civil Action No: J~C..V ~J..~
cw~ f'~

INTRODUCTION 1. The United States brings this action against the State to enforce the rights of adults with mental illness to receive services in the most integrated setting appropriate to tneir needs. The State discriminates against adults with mental illness by administering and funding its programs and services for these individuals in a manner that has resulted in their repeated, prolonged, and unnecessary institutionalization in state-run psychiatric hospitals, and placed them at serious risk of such institutionalization, in violation of Title II of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12131-12134. 2. Every day, hundreds of adults with mental illness are unnecessarily and illegally segregated in Mississippi's state-run psychiatric hospitals or are at serious risk of entering these institutions. They enter and remain in these isolating institutions because the State of Mississippi ("the State") has failed to provide them sufficient community-based mental health services.

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 2 of 31
3. While confined in these institutions, adults with mental illness are unnecessarily cut off from non-disabled family and friends and others in the community. 4. By virtue of their institutionalization, these adults with disabilities are deprived of meaningful opportunities to choose friends, work, or make choices about their day to day activities, such as what and when to eat, when to make a phone call, and where to go on a walk. 5. These individuals experience the type of"[u]njustified isolation" that the Supreme Court held "is properly regarded as discrimination based on disability." Olmstead v. L.C., 527 U.S. 581, 597 (1999). 6. Title II of the ADA prohibits the unjustified segregation of persons with disabilities, see 42 U.S.C. § 12132; Olmstead, 527 U.S. at 597, and requires states and other public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.P.R.§ 35.130(d) (2010). 7. Life in an institution leads not only to stigma and isolation, but also regression, learned helplessness, and physical harm. It is well-recognized that integrated, community-based services enhance and support recovery from mental illness. 8. In 2003, the President of the United States put together a committee tasked with studying the nation's mental health service delivery system and making recommendations that would enable adults with serious mental illness to live, work, learn, and participate fully in their communities. The committee concluded that "[m]ore individuals could recover from even the most serious mental illnesses if they had access in their communities to treatment and supports that are tailored to their needs." New Freedom Commission on Mental Health, Achieving the Promise: Transforming Mental Health Care in America, Final Report 5, Pub. No. SMA03-3831 (2003).
2

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 3 of 31
9. In the community, individuals have the opportunity to learn and practice skills that enable independence. Further, people typically prefer to live in the community, and are more motivated to engage in treatment in their homes. 10. The State of Mississippi has long recognized that it unnecessarily relies on institutions and fails to provide sufficient services to enable adults with mental illness to live in the community. 11. In 2008, the Mississippi Legislature's Joint Committee on Performance Evaluation and Expenditure Review ("PEER") found that "[a]lthough the mental health environment in the United States has dramatically changed from an institution-based system to a community-based system in recent years, Mississippi's mental health system has not reflected the shift in service delivery methods." Joint Legislative Committee on PEER, Report to the Miss. Legislature No. 511, Planning for the Delivery of Mental Health Services in Mississippi: A Policy Analysis 1 (2008). A year ago, the same Committee recommended that "[t]he Department of Mental Health and Mississippi State Hospital should gather the appropriate data sets regarding the mental health needs of the hospital, the communities, and the state in order for the department to articulate its community-based services strategy, design its implementation process, and reallocate its resources." Joint Legislative Committee on PEER, Report to the Miss. Legislature No. 593, Staffing of Psychologists at the Mississippi State Hospital in a Changing Mental Health Service Delivery Environment 1 (2015). 12. Mississippi continues to concentrate its State spending on mental health on institutional care. 13. In fiscal year 2015, the Mississippi Department ofMental Health spent $202.5 million on its state hospitals, which include the Mississippi State Hospital, North Mississippi State Hospital,
3

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 4 of 31
East Mississippi State Hospital, and South Mississippi State Hospital. It provided about $25 million in grants for intensive community-based services that could be used to divert people from hospitals and support those individuals in the community that year. 14. Community-based mental health services include psychiatric services, individual and group therapy, intensive case management, crisis services, peer support services, Assertive Community Treatment, supported employment, and permanent supported housing. 15. These community-based services for adults with mental illness already exist within Mississippi's mental health service system, but they are not provided uniformly throughout the State's system and even where they are available, they are not available in sufficient quantities to meet the need. 16. If administered appropriately, these community-based services would be both costeffective and capable of meeting the needs of adults with mental illness. 17. The United States seeks to vindicate the rights of adults with mental illness in Mississippi's state-run psychiatric hospitals, and those at serious risk of entry into these institutions.
JURISDICTION AND VENUE 18. This Court has jurisdiction over this action under Title II of the ADA, 42 U.S.C. § 12133, and 28 U.S.C. §§ 1331, 1345. The Court may grant the relief sought in this action pursuant to 28 U.S.C. §§ 2201-2202. The United States has the authority to seek a remedy for violations of Title II ofthe ADA, 42 U.S.C. §§ 12133-12134; 28 C.P.R.§§ 35.170-174, 190(e). 19. The United States is authorized to initiate this action pursuant to the Civil Rights of Institutionalized Persons Act of 1980 ("CRIPA"), 42 U.S.C. § 1997.
4

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 5 of 31
20. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint as Attachment A and is incorporated herein. 21. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), given that a substantial part of the acts and omissions giving rise to this action occurred in the Southern District of Mississippi.
PARTIES 22. Plaintiff is the United States of America. 23. Defendant, State of Mississippi, is a "public entity" within the meaning ofthe ADA, 42 U.S.C. § 12131(1), and is therefore subject to Title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.P.R. pt. 35. 24. The State of Mississippi owns and operates four psychiatric hospitals, which are institutions under the meaning of 42 U.S.C. § 1997(1). The State administers and funds services for adults with mental illness through various agencies and departments. 25. Mississippi's Division of Medicaid manages the State's Medicaid program, which includes coverage of mental health services to Medicaid-enrolled adults with mental illness. 26. Mississippi's Department of Mental Health is the state agency responsible for providing mental health services to the citizens of Mississippi. 27. As part of its mental health system, the Department ofMental Health provides statefunded, state-run psychiatric residential services for adults with mental illness at four psychiatric hospitals and one residential center.
5

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 6 of 31
28. The Department of Mental Health also regulates, oversees, and provides funding for community-based mental health services for adults with mental illness. 29. The Mississippi Home Corporation was created by the Mississippi Home Corporation Act of 1989 to address affordable housing needs in Mississippi. The Mississippi Home Corporation is Mississippi's designated Housing Finance Agency and is responsible for developing private and public partnerships throughout the State to increase affordable housing stock, including for adults with mental illness. The Mississippi Home Corporation is responsible for implementing the State's integrated permanent supported housing program. See House Bill No. 1563 (2015).
STATUTORY AND REGULATORY BACKGROUND 30. Congress enacted the ADA in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities[.]" 42 U.S.C. § 12101(b)(l). It found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem[.]" 42 U.S.C. § 12101(a)(2). It further found that "discrimination against individuals with disabilities persists in ... institutionalization ... and access to public services[,]" 42 U.S.C. § 12101(a)(3), and that "individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion ... , segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities[.]" 42 U.S.C. § 12101(a)(5). 31. Congress concluded that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and
6

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 7 of 31
economic self-sufficiency for such individuals" and "the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity." 42 U.S.C. § 12101(a)(7)-(8) (2008). 32. For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. 33. Title II of the ADA prohibits discrimination on the basis of disability by public entities. This encompasses the State of Mississippi, its agencies, and its community mental health system, because a "public entity" includes any state or local government, as well as any department, agency, or other instrumentality of a state or local government, and it applies to all services, programs, and activities provided or made available by public entities, such as through contractual, licensing, or other arrangements. 42 U.S.C. § 12131(1) and§ 12132. 34. Congress directed the Attorney General to issue regulations implementing Title II of the ADA. 42 U.S.C. § 12134. The Title II regulations require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The preamble discussion explains that "the most integrated setting" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible[.]" 28 C.F.R. pt. 35, App. B (2011).
7

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 8 of 31
35. Regulations implementing Title II of the ADA further prohibit public entities from utilizing "criteria or methods of administration" "[t]hat have the effect of subjecting qualified individuals with disabilities to discrimination" or "[t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives ofthe public entity's program with respect to individuals with disabilities[.]" 28 C.F.R. § 35.130(b)(3); accord 45 C.F.R. § 84.4(b)(4) (Rehabilitation Act). 36. In Olmstead, the Supreme Court affirmed that Title II prohibits the unjustified segregation of individuals with disabilities. The Court explained that its holding "reflects two evident judgments." 527 U.S. at 600. "First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." Id. "Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." Id. at 601. 37. Under Olmstead, public entities are required to provide community-based services when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607. 38. CRIPA permits the United States to initiate action to vindicate the rights of individuals confined to psychiatric institutions, owned, operated, or managed by a State, who have been deprived oftheir statutory rights. See 42 U.S.C. § 1997.
8

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 9 of 31
FACTUAL ALLEGATIONS A. State Hospitals are Segregated, Institutional Settings 39. Mississippi operates four costly, publicly-funded psychiatric hospitals located throughout the State: the Mississippi State Hospital, North Mississippi State Hospital, East Mississippi State Hospital, and South Mississippi State Hospital (collectively "the State Hospitals"). 40. The State Hospitals are segregated, institutional settings that do not enable individuals living there to interact with non-disabled persons to the fullest extent possible. While confined in these institutions, individuals are deprived of meaningful opportunities, such as the opportunity to choose friends, participate in employment, or make choices about activities, food, or living arrangements. 41. Individuals residing in the State Hospitals live in close quarters with other persons with disabilities. They are assigned to small hospital rooms, often with roommates they did not choose. 42. The State Hospitals provide little opportunity for individuals with disabilities to interact with individuals without disabilities, apart from Hospital staff. 43. Individuals living in the State Hospitals have very little autonomy over their daily lives. Most aspects of their daily lives are regimented and limited by rigid rules and inflexible practices. These rules and practices include rights restrictions, structured meal times, limits on the ability to have visitors, and limits on travel outside the facilities. As a result, most aspects of their daily lives are controlled by the institutions, and they have little autonomy, privacy, or meaningful opportunities to participate in the community. 44. Physically, the State Hospitals are isolated from the general community-they are secluded on large tracts of land and cut off from towns, restaurants, stores, and public transportation, enjoyed by the broader community.
9

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 10 of 31
45. For instance, the Mississippi State Hospital, established in 1855 and originally known as the Mississippi State Lunatic Asylum, is located on a 350-acre campus in Whitfield, Mississippi, the site of a former state penal colony. The campus consists of over 130 buildings and has its own campus police department. 46. The Mississippi State Hospital employs approximately 1,750 employees. 47. The East Mississippi State Hospital, located in Meridian, employs approximately 1,130 employees. It was founded in 1882 and was originally known as the East Mississippi State Insane Asylum. 48. The North Mississippi State Hospital, located in Tupelo, and South Mississippi State Hospital, located in Purvis, were built recently. The North Mississippi State Hospital opened in 1999 and the South Mississippi State Hospital in 2000. Each of those hospitals employs over 100 full-time staffto cover its 50 beds.
B. Thousands of Mississippians Cycle in and out of State Hospitals Each Year 49. Thousands of adults with mental illness in Mississippi needlessly cycle in and out.ofthe State Hospitals each year because they do not receive the supports they need in the community. 50. These individuals receive care in a hospital setting away from family, friends, and other natural supports, then return to their communities where they often get no or insufficient treatment, their symptoms get worse, they experience a crisis, and they return to the hospital. 51. Not including forensic beds, the State Hospitals have about 500 adult psychiatric beds. Collectively, they serve approximately 3,300 adults per year. 52. The average length of stay in the shorter-term units of the State Hospitals is 43 days.
10

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 11 of 31
53. Many individuals who are admitted to a State Hospital are first held at a local acute psychiatric hospital, crisis stabilization unit, jail, or holding facility while awaiting a placement at a State Hospital, lengthening the overall time spent in an institutional setting. 54. Repeat admissions to the shorter-term units of the State Hospitals are common. 55. For example, over 55% of the 206 adults in the shorter-term units at the Mississippi State Hospital on a randomly selected day in 2014 had previously been admitted two or more times, and more than 11% had previously been admitted more than ten times. 56. One twenty-seven year old man admitted to the Mississippi State Hospital on a randomly selected day in March 2015 had 22 prior admissions to the Hospital. ·Individuals with persistent needs cycle through the State Hospitals over and over again, to say nothing of admissions to local emergency rooms, private psychiatric hospitals, and jails. 57. Readmissions typically result from insufficient services in the community and inadequate coordination between treating professionals in facilities and those who support the individuals when they are in the community. 58. The State often fails to ensure that there is a plan for providing services and supports in the community that will meet the individual's needs and prevent readmission to the State Hospitals. Community mental health centers are core providers supporting people with mental illness when they return to the community, yet they often are not involved in treatment and discharge planning. Other than scheduling a follow-up appointment for the individual at the local provider, there is typically minimal coordination between the State Hospital and the local provider.
11

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 12 of 31
C. Individuals in the Mississippi State Hospital's Longer-Term Units Remain There for Years
59. Over 100 individuals were institutionalized in the Mississippi State Hospital longer-term units in fiscal year 2014. 60. The average length of stay that year for individuals in the Mississippi State Hospital longer-term units was over seven years. One individual was admitted to the Mississippi State Hospital in 1959, at the age oftwenty, and remained there over fifty years, at least until2015. 61. Individuals dually-diagnosed with mental illness and an intellectual or developmental disability may spend years in a State Hospital due to the lack of community-based services to meet their needs. 62. While the State has reduced the number of longer-term beds at the State Hospitals, it has simultaneously transferred many individuals to other long-term, segregated settings, including other State-run facilities, nursing facilities, and personal care homes. It has also discharged individuals from the State Hospitals to homelessness and other unstable environments. 63. Some of the individuals who had been institutionalized at the Mississippi State Hospital have been placed in a nursing facility on the same grounds as a State Hospital. 64. Other individuals were discharged to the Central Mississippi Residential Center, a Statefunded residential behavioral health program for adults with mental illness that looks much like the State Hospitals. The Center consists of multiple buildings on an isolated campus in Newton, Mississippi with a capacity to serve 68 individuals at a given time. The average length of stay at the Center is 545 days; however, several individuals have lived at the Center for five years or more, many of whom already spent much of their lives in a State Hospital. 65. Mississippi's State Hospitals fail to offer appropriate treatment and discharge planning necessary to successfully transition individuals to the community. Discharge plans are
12

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 13 of 31
frequently boilerplate and disconnected from the skills individuals need in order to live in the community.
D. Mississippi's Administration of its Service System has Caused Unnecessary Segregation of Individuals in State Hospitals and Placed Others at Serious Risk of Unnecessary Institutionalization
66. Through the Mississippi Division of Medicaid and Department of Mental Health, the State determines what services will be provided, where services will be available, how services will be funded, who will be eligible for services, how service quality will be evaluated, and what providers are permitted to offer the services. 67. The Mississippi Department of Mental Health funds and operates the State Hospitals. 68. The Mississippi Department of Mental Health and Division of Medicaid plan, contract, fund, regulate, and oversee the community mental health system that provides community-based alternatives to the State Hospitals. 69. The State offers community-based mental health services primarily through fourteen regional community mental health centers ("CMHCs"). The CMHCs are the principal service providers with whom the Mississippi Department of Mental Health and Division of Medicaid contract to furnish a range of community-based mental health and substance abuse services to persons with disabilities, including mental illness. The Mississippi Department of Mental Health is responsible for certifying, monitoring, and assisting the CMHCs. 70. The CMHCs are required to offer certain mental health services, including psychiatric services, individual and group therapy, community-based support services, crisis services, and peer support services. Some CMHCs also offer more intensive services, like Assertive Community Treatment, supported employment, and residential services. In addition, the
13

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 14 of 31
Department of Mental Health pays the CMHCs to conduct pre-screening evaluations to determine whether individuals are eligible for admission to a State Hospital. 71. The Mississippi Department ofMental Health and Division of Medicaid exercise control over the availability and quality of community mental health services in the State. 72. The Mississippi Department of Mental Health certifies each CMHC prior to its selection as the designated provider, promulgates operational standards for all CMHCs, conducts reviews of CMHC operations, awards grant funds to support specific community services, and requires financial and performance reporting. 73. The Mississippi Division of Medicaid establishes the Medicaid services that will be available, defines the purpose of those services, defines limits on those services, engages in utilization control, and determines the rates for those services. 74. Numerous policies, practices, and actions by the State, including the Mississippi Department of Mental Health and Division of Medicaid, have led to the unnecessary segregation of individuals with mental illness in State Hospitals and placed many other individuals with mental illness at serious risk of institutionalization. Despite being aware that it unnecessarily relies on an institutional model to serve individuals with mental illness, the State continues to discriminate against people with mental illness by failing to provide sufficient, integrated community-based mental health services consistent with their individual needs. It has done so primarily by: (1) failing to provide sufficient community-based mental health services throughout the State and (2) concentrating funding in its State Hospitals rather than communitybased services.
1. The State fails to provide sufficient community-based mental health services throughout the State.
14

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 15 of 31
75. The State recognizes that community-based services, including psychiatric services, individual and group therapy, intensive case management, crisis services, peer support services, Assertive Community Treatment, supported employment, and permanent supported housing promote positive outcomes and prevent hospitalizations among persons with serious mental illness. See,~' Mississippi Department ofMental Health, Think Recovery Newsletter 1, 6-7 (20 15), available at http://www.dmh.ms.gov/wp-content/uploads/2015/09/MS-RecoveryNewsletter-Summer-2015.pdf(last visited January 13, 2016). Individuals with mental illness living in the community may need one or more of these community-based services at any given time to avoid unnecessary hospitalization. Yet the State fails to sufficiently provide communitybased mental health services, particularly in certain geographic areas of the State, leaving thousands of people who are in the State Hospitals or at serious risk of entering those Hospitals without the ability to access needed community-based treatment. 76. In fiscal year 2015, nearly 5,500 individuals were screened for non-forensic admission and about 3,300 were ultimately placed in a State Hospital. More individuals could be diverted from costly, segregated institutional placement at the State Hospitals if the State increased the availability of community-based services. 77. Crisis services are a critical part of a successful community mental health system because effective crisis professionals can divert individuals from institutionalization and link them quickly to needed community-based services. For instance, mental health clinicians offering mobile crisis services go into the community to meet individuals at the site of a crisis and offer interventions to prevent hospitalization. Crisis professionals can also work closely with law enforcement to help divert individuals from arrest and incarceration or civil commitment.
15

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 16 of 31
78. The State acknowledges that "[w]ithout mobile crisis intervention, someone experiencing a mental health crisis may end up in a hospital, inpatient psychiatric program, a holding facility or even a jail." Mississippi Department ofMental Health, Mississippi Profile 9 (2015), available at http://www.dmh.ms.gov/wp-content/uploads/2015/03/Mississippi-Profile-Winter-and-Spring2015.pdf(last visited January 13, 2016). 79. The State, however, is not ensuring that these critical face-to-face interventions are uniformly available to individuals in crisis across the State. While one CMHC reported over 3,000 face-to-face mobile crisis interventions in fiscal year 2015, another CMHC, with a nearly identical regional population, reported fewer than 50 face-to-face interventions all year. 80. Assertive Community Treatment ("ACT") is another critical community-based mental health service that is not sufficiently available in Mississippi. It is an intensive team-based treatment model that provides multidisciplinary, flexible treatment and support to people with mental illness to increase integration and prevent hospitalizations. Substance Abuse and Mental Health Services Administration, Assertive Community Treatment: Building Your Program 5, Pub. No. SMA08-4344 (2008). 81. The State recognizes the importance of ACT in helping individuals with serious mental illness remain stable in the community and avoid unnecessary institutionalization. A Mississippi Department of Mental Health press release about the State's ACT program stated, "[i]n the four years DMH has had [ACT] teams operating, they have been extraordinarily successful in helping individuals in recovery by ensuring they can stay and participate in the communities of their choice." Further elaborating on the success ofthe program, the Department of Mental Health Executive Director, Diana Mikula, stated, "Recovery not only benefits the individual, it benefits the entire community.... Evidence-based programs such as [ACT] Teams are essential to keep
16

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 17 of 31
individuals in the community and help them continue on their road to recovery." Mississippi Department of Mental Health, Mississippi Expapds Program of Assertive Community Treatment Teams, available at http://www.dmh.ms.gov/mississippi-expands-program-of-assertivecommunity-treatment-teams/ (last visited January 13, 2016). 82. In spite of this recognition, the State only offers ACT services in about half of its fourteen community mental health regions statewide, and the existing teams serve a very small number of individuals. 83. In fiscal year 2015, the State served only 189 people with ACT through its eight ACT teams, despite the overwhelming need for the service. 84. ACT teams are designed to serve between 80 and 100 individuals each, so the existing teams could serve between 640 and 800 individuals while implementing the service with fidelity to the evidence-based model. Due to poor implementation of the service, the teams remain underutilized. 85. The absence of ACT capacity is particularly palpable in the Jackson area. Hinds and Rankin counties, covering the Jackson metropolitan area, send more people to State Hospitals for treatment than any other counties in Mississippi; in fiscal year 2015, 307 people from Hinds County and 206 people from Rankin County were served in the State Hospitals. Together, the two counties account for about 17% of the people served in the State Hospitals, yet neither county had an ACT team until2015. 86. An ACT team was established in Hinds County in 2015, but because it only served 17 individuals, it had little impact on reducing the number of State Hospital admissions. No ACT team serves Rankin County.
17

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 18 of 31
87. The State has begun to establish a certified peer support program through which individuals who have lived with mental illness assist others with mental illness to increase resiliency, manage symptoms, build community living skills, and' work toward recovery in order to live integrated lives in the community and avoid hospitalization. The State recognizes that peer support can be just as valuable as other professional treatment services for people with mental illness. See Mississippi Department of Mental Health, Think Recovery Newsletter 1 (20 15), available at http://www.dmh.ms.gov/wp-content/uploads/2015/09/MS-RecoveryNewsletter-Summer-2015.pdf (last visited January 14, 2016). 88. Peer support services are not sufficiently available throughout the State, however. In fact, two of the CMHC regions each employ only a single peer support specialist. Over 450,000 people live in the 14 counties served by those CMHCs. 89. Permanent supported housing is another service that enables people with serious mental illness to avoid hospitalization. As its name implies, permanent supported housing is (1) permanent, meaning "tenants may live in their homes as long as they meet the basic obligations of tenancy[;]" (2) supportive, meaning "tenants have access to the support services that they need and want to retain housing;" and (3) housing, meaning "tenants have a private and secure place to make their home, just like other members ofthe community, with the same rights and responsibilities." Substance Abuse and Mental Health Services Administration, Permanent Supportive Housing: Building Your Program 1, Pub. No. SMA-10-4509 (2010). 90. The State has recognized the need for permanent supported housing as an effective evidence-based service for individuals with serious mental illness that enables people to live integrated lives in the community and avoid institutionalization. See Technical Assistance
18

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 19 of 31
Collaborative, A Statewide Approach for Integrated Supportive Housing in Mississippi 1-3 (2014); House Bill No. 1563 (2015). 91. The State acknowledges, however, that sufficient permanent supported housing is not available in Mississippi to meet the needs of persons with mental illness. The State calculates that over 7,000 people are candidates for permanent supported housing, and that it would need to provide at least 2,900 slots to meet the national rate of permanent supported housing availability. Still, the State has provided funding for what they estimate will support only 200 permanent supported housing slots for fiscal years 2015 and 2016. See House Bill No. 1563 (2015). 92. The insufficiency of community services coupled with inadequate State Hospital discharge planning places people at serious risk of readmission to a State Hospital. Individuals are frequently discharged from a State Hospital without sufficient community supports in place and to inappropriate housing, such as homeless shelters. For instance, in fiscal year 2014, at least 56 individuals were discharged to homelessness. 93. Mississippi's failure to develop a sufficient, high-quality supply of community-based services and failure to conduct adequate discharge planning from its State Hospitals to the community forces individuals with mental illness to obtain necessary services at inappropriate and costly venues, such as emergency rooms, jails, and psychiatric hospitals.
n. The State fails to fund sufficient community-based services and instead focuses funding on institutional settings.
94. The State's reliance on institutional care is reflected in its spending. 95. In spite of a challenging fiscal environment, the State has continued to concentrate funding on costly institutional care at State facilities when it could provide appropriate, less
19

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 20 of 31
expensive services in the community and share the cost of many of those services with the federal government. 96. Virtually all of the costs of the State facilities are paid for with State general funds. When the State provides community alternatives through its Medicaid program, however, the federal government provides matching funds; the federal government pays for 73% of all Medicaid expenditures in Mississippi. Federal Medicaid dollars are not available to fund inpatient psychiatric services for adults under 65 in the State Hospitals, but would be available to all Medicaid beneficiaries receiving eligible community-based services. 97. In fiscal year 2015, the Mississippi Department of Mental Health spent $202.5 million on the State Hospitals. In addition to the State Hospitals, the State has concentrated resources in its 68-bed Central Mississippi Residential Center. In fiscal year 2015, the State spent $5.8 million to operate the Center. 98. The State reports that the cost for one individual in the State Hospitals is over $470 per day, on average. Based on the CMHC Billing Guidelines, the approximate cost to the State (minus the federal portion) to serve Medicaid eligible individuals with the most intensive needs who instead receive ACT in the community is approximately $30 per day. And many individuals served at the State Hospitals will not need the most intensive and most expensive communitybased services in order to avoid unnecessary hospitalizations. 99. The Mississippi Legislature's Joint Committee on Performance Evaluation and Expenditure Review committee reported in 2008 that, generally, institution-based services cost more per client than community-based services and that the State's focus on institution-based care "represents a much more expensive service delivery model than does community-based
20

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 21 of 31
care." Joint Legislative Committee on PEER, Report to the Miss. Legislature No. 511, Planning for the Delivery of Mental Health Services in Mississippi: A Policy Analysis 55 (2008). 100. The State's recent spending on new facilities at the East Mississippi State Hospital is another example of its significant investment in the State Hospitals. In the last two years, the State has funded several new buildings at East Mississippi State Hospital, with the newest ones currently under construction. In 2014, the State opened a new $7 million dining facility. The State is currently spending $14 million to build a brand-new 60-bed unit and a central mechanical building. 101. Even though the State modified its Medicaid State Plan in 2012 to make some critical community-based mental health services Medicaid reimbursable, including mobile crisis, ACT, and peer support, these services are still not being offered in sufficient quantity. For instance, in fiscal year 2014, Medicaid only reimbursed providers for serving 60 people with ACT and 533 people with peer support. Yet offering these Medicaid reimbursable services makes economic sense given the federal government's matching funds. 102. Mississippi could serve individuals with mental illness in the community by maximizing existing resources-both by redirecting spending from segregated, institutional settings to community-based programs and by fully implementing the State's Medicaid State Plan services.
E. Mississippi is Aware That it Unnecessarily Relies on Institutional Settings and has not Taken the Action Needed to Remedy the Violations of Law
103. The State has long been aware of the failures of its mental health system. In recent years, Mississippi has recognized, and reported on, the State's significant reliance on institutional care to serve persons with disabilities, including mental illness.
21

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 22 of 31
104. In 2008, the Mississippi Legislature's PEER Committee issued a comprehensive report that concluded that the Board of Mental Health had not focused on developing adequate community-based programs and reallocating resources to meet the emergent needs of persons with mental illness in Mississippi. Joint Legislative Committee on PEER, Report to the Miss. Legislature No. 511, Planning for the Delivery of Mental Health Services in Mississippi: A Policy Analysis 54-56 (2008). The PEER committee concluded that Mississippi was out-of-step with national trends and was failing to meet the needs of persons with disabilities in integrated community settings. Id. at 1 ("Although the mental health environment in the United States has dramatically changed from an institution-based system to a community-based system in recent years, Mississippi's mental health system has not reflected the shift in service delivery methods."). 105. The PEER committee recognized that, due to the ADA and the Olmstead decision, "the state will be forced to move toward providing more community-based care in the near future." Id. The PEER committee concluded that the State was not in a good position to address outstanding issues because the Mississippi Board of Mental Health "has not aggressively sought plans for reallocation of resources to meet emerging needs in addition to efforts to seek additional funding to meet those needs ... [thus,] allowing the development of communityoriented programs to fall behind." Id. 106. In June 2014, the PEER committee again found that the State has missed opportunities to provide community-based services. In a report related to the closure of the Mississippi State Hospital's Community Services Division, the PEER committee noted that the Department of Mental Health redirected resources from the closure of community-based programs into the State Hospitals, thus "forgo[ing] the opportunity to redirect the resources yielded from closure of the
22

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 23 of 31
[community services] division into providing community-based mental health care." Joint Legislative Committee on PEER, Report to the Miss. Legislature No. 584, A Review of the Closure ofthe Mississippi State Hospital's Community Services Division viii (2014). 107. In a May 2015 report, the PEER committee again reiterated that "Mississippi will be forced to move toward providing more community-based mental health care in the near future" and recommended that "[t]he Department of Mental Health and Mississippi State Hospital should gather the appropriate data sets regarding the mental health needs of the hospital, the communities, and the state in order for the department to articulate its community-based services strategy, design its implementation process, and reallocate its resources." Joint Legislative Committee on PEER, Report to the Miss. Legislature No. 593, Staffing of Psychologists at the Mississippi State Hospital in a Changing Mental Health Service Delivery Environment 1 (20 15). 108. As early as 2001, the State acknowledged the need for significant change in its Olmstead Plan. The Olmstead Plan, developed in conjunction with various stakeholders, was entitled Mississippi Access to Care ("MAC"), and was submitted to the Mississippi Legislature on September 30, 2001. Mississippi Access to Care Plan (2001), available at https://www.medicaid.ms.gov/wp-content/uploads/2013/12/MAC_2001Plan.pdf (last visited January 14, 2016). The overall stated purpose of the Plan was to "create an individualized service and support system that enables individuals with disabilities to live and work in the most integrated setting of their choice. It is our vision that all Mississippians with disabilities will have the services and supports necessary to live in the most appropriate and integrated setting possible." Id. at 9. 109. Among the many changes that the Plan identified as necessary to realize this vision were the development of community housing alternatives for over 1,000 adults with serious mental
23

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 24 of 31
illness, the expansion of the State's supported employment program, and the expansion of intensive case management. Id. at 22, 28, 39. 110. The first and only implementation report explained that while some agencies were attempting to implement the reforms identified in the State's Olmstead Plan, the State had not funded the Plan and this made full implementation impossible. MAC Implementation Report #1 5 (2003). 111. After ten years in which the State did not engage in any meaningful Olmstead planning, the State launched MAC 2.0 in 2013. MAC 2.0 is apparently an umbrella for workgroups related to specific federal grant programs. 112. This MAC 2.0 initiative has not resulted in a revised Olmstead Plan. See Mississippi Division of Medicaid, Mississippi Access to Care (MAC) 2.0, available at https://www.medicaid.ms.gov/mississippi-access-to-care-mac-2-0/ (last visited January 14, 2016). 113. The Department of Mental Health's current strategic plan also recognizes that expansion of community-based services and supports is critical. The strategic plan is aimed at "moving toward a community-based service system." Mississippi Board of Mental Health, FY16-FY18 DMH Strategic Plan 1. 114. The goals in the current plan highlight the continued need for reform. The plan calls for providing supports in the community "to prevent out-of-home placements[;]" ensuring access to crisis services to "divert individuals from more restrictive environments such as jail, hospitalizations, etc.[;]" providing adults with serious mental illness access to "appropriate and affordable housing[;]" and using peer support to "assist individuals in regaining control of their lives and their own recovery process[.]" Id. at 8.
24

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 25 of 31
115. Nearly fifteen years after developing the State's Olmstead Plan, the State still is not meeting its obligations under the ADA to serve adults with serious mental illness in the most integrated setting appropriate.
F. Individuals with Mental Illness in State Hospitals Or at Serious Risk of Hospitalization are Persons with Disabilities Who are Qualified to Receive Services in More Integrated Settings and Do Not Oppose It
116. Individuals admitted to or at serious risk of entry into State Hospitals have mental illnesses, such as schizophrenia, bipolar disorder, depression, and others, that substantially limit one or more major life activities, including personal care, working, concentrating, thinking, and sleeping. They are therefore persons with disabilities for purposes of the ADA. 117. A vast majority of the individuals with mental illness in the State Hospitals and those at serious risk of entry into those hospitals are qualified to receive mental health services in the community and can be served in more integrated settings. 118. People in the State Hospitals and those at serious risk of entry into those hospitals are similar to people with mental illness who receive services in the community. They have similar diagnoses and needs as people who live successfully in more independent community-based settings with the types of supports and services that currently exist in the State's community mental health system. 119. Persons with mental illness at the State Hospitals would not oppose moving to and receiving services in integrated settings if appropriate community-based services were available and if individuals had a realistic opportunity to do so. 120. Individuals in the State Hospitals routinely request to leave the facility and return to their own communities.
25

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 26 of 31
G. The State Can Provide Services in Integrated Settings by Reasonably Modifying Its Mental Health Services System
121. The State can provide services in integrated community settings to people with mental illness who are currently held in State Hospitals and to people with mental illness at serious risk of entry into State Hospitals through reasonable modifications to its mental health services system. 122. The types of services needed to support people with mental illness in community-based settings already exist in Mississippi's community-based mental health service system. 123. However, these services are not sufficiently provided to meet the needs of persons who are unnecessarily institutionalized or those at serious risk of institutionalization. 124. With reasonable modifications, including expansion of the capacity to provide existing services, reallocation of funds from institutions, and maximization of the State's Medicaid program, Mississippi's community mental health system would be able to meet the needs of people with mental illness in State Hospitals or at serious risk of being placed in a State Hospital.
H. The United States' Investigation 125. After receiving an allegation of discrimination, in 2011, the United States investigated the State of Mississippi's compliance with Title II of the ADA. On December 22, 2011, the United States issued its findings and conclusions in a letter to the Governor, concluding that the State fails to provide services to adults with mental illness in the most integrated setting appropriate to their needs as required by the ADA and Olmstead. Letter from United States Department of Justice, Civil Rights Division to The Honorable Haley R. Barbour (Dec. 22, 2011 ). 1 The letter
1 The United States also made findings related to children with serious mental health conditions and adults and children with intellectual and/or developmental disabilities. This Complaint does not address the United States' claims with regard to these other populations.
26

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 27 of 31
reported in detail the findings of the United States' investigation, provided the State notice of its failure to comply with the ADA, and outlined the steps necessary for the State to meet its obligations pursuant to federal law. 126. Nonetheless, the State continues to fail to ensure that adults with mental illness are served in the most integrated setting appropriate to their needs, or that their discharge planning needs are met in order to transition successfully into community settings. 127. The United States engaged in multiple rounds of negotiations with the State beginning in the spring of2012. The United States has determined that compliance cannot be secured by voluntary means. Judicial action is, therefore, necessary to remedy the violations of law identified in the United States' letter and to vindicate the rights of the adults with mental illness in or at serious risk of institutionalization in State Hospitals.
COUNT I VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. §§ 12131 et seq. 128. The allegations of Paragraphs 1 through 127 of this Complaint are hereby realleged and incorporated by reference. 129. Defendant, State of Mississippi, is a public entity subject to Title II of the ADA, 42 U.S.C. § 12131(1). 130. The State violates the ADA by administering the State's mental health service system in a manner that denies qualified adults with mental illness the benefits of the State's mental health services, programs, or activities in the most integrated setting appropriate to their needs and by
27

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 28 of 31
failing to reasonably modify the State's mental health services system to avoid discrimination against adults with mental health disabilities. 42 U.S.C. § 12132; 28 C.F.R. 35.130. 131. The State's actions constitute discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations at 28 C.F.R. pt. 35. 132. The acts and omissions alleged in Paragraphs 1 through 127 constitute a pattern or practice and infringe upon the legal rights of individuals residing in or confined to institutions in Mississippi, constituting resistance to their full enjoyment of their rights, privileges, or immunities secured or protected by the ADA, and depriving persons in institutions of such rights, privileges, or immunities.
PRAYER FOR RELIEF
The Attorney General is authorized under 42 U.S. C. §§ 1997 and 12131 et. seq. to seek equitable and declaratory relief.
WHEREFORE, the United States of America prays that the Court: A. Grant judgment in favor of the United States on its Complaint and declare that the
Defendant has violated Title II of the ADA, 42 U.S.C. §§ 12131 et. seq.; B. Enjoin Defendant from:
1. discriminating against adults with mental illness in Mississippi by failing to provide services, programs, or activities in the most integrated setting appropriate to their needs;
2. failing to provide appropriate, integrated community services, programs, or activities to adults with mental illness in Mississippi, consistent with their individual needs, to
28

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 29 of 31 avoid placing these individuals at serious risk of institutionalization in State Hospitals; and
3. taking appropriate action necessary to remedy the violation of Title II of the ADA. C. Issue a declaratory judgment that Defendant has violated Title II of the ADA by failing to
make reasonable modifications to services, programs, or activities for adults with mental illness to enable them to obtain the services, programs, and activities they require to reside in the most integrated setting appropriate to their needs; D. Order such other appropriate relief as the interests ofjustice may require.
29

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 30 of 31

, This Ift"day of Aa~-b"' 2016

Respectfully submitted,

FOR THE UNITED STATES:
JGRj E~AVkI.SOu«a
United States Attorney Southern District of Mississippi
Assistarr United States Attorney MS Bar No. 6014 United States Attorney's Office Southern District of Mississippi 501 E. Court Street, Ste. 4.430 Jackson, MS 39201 Telephone: (601) 973-2840 Facsimile: (601) 965-4409 mitzi.paige@usdoj .gov

~L~ LORETTA E. LYNCH Attorney General United State-s z~ Principal Deputy Assistant Attorney General Civil Rights Division
EVE L. HILL Deputy Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief, Special Litigation Section
REGAN RUSH Deputy Chief, Special Litigation Section
Et~ C,. Ki.L~
ELIZ ETH C. KELLEY ADRIENNE MALLINSON DEENA FOX Trial Attorneys VA Bar No. 80255 Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W.- PHB Washington, DC 20530 Telephone: (202) 514-0460 Facsimile: (202) 514-6903 Beth.Kelley@usdoj .gov
30

Case 3:16-cv-00622-CWR-FKB Document 1 Filed 08/11/16 Page 31 of 31
CERTIFICATE OF THE ATTORNEY GENERAL I, Loretta E. Lynch, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. State of Mississippi, I have complied with all subsections of 42 U.S.C. § 1997b(a)(l). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a)(2). I further certify, pursuant to 42 U.S.C. 1997b(a)(3), my beliefthat this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by laws of the United States. In addition, I certify that I have the "reasonable cause to believe," set forth in 42 U.S.C. § 1997a, to initiate this action, and that all prerequisites to the initiation of this suit under 42 U.S.C. §§ 1997a and 1997b have been met. Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.
Signed this~day of awyJ' ,2016, at Washington, D.C.
c&~, zo~ LORETTA E. LYNCH Attorney General of the United States

 
 u.s. Department of Justice
Civil Rights Division

Office of the Assistant Attorney General

Washington, D. C. 20530
DEC 22 2011

The Honorable Haley R. Barbour Governor State of Mississippi Walter Sillers Building, 19th Floor 550 High Street Jackson, MS 39021
Re: United States' Investigation of the State of Mississippi's Service System for Persons with Mental Illness and Developmental Disabilities
Dear Governor Barbour:
The United States has completed its investigation of the State of Mississippi's system for delivering services and supports to thousands ofpersons with mental illness and/or developmental disabilities I ("DD"). This letter is a report of our findings. Our review reveals that the State of Mississippi has failed to meet its obligations under Title II of the Amel;lcans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, and its implementing regulations, 28 C.F.R. pt. 35, by unnecessarily institutionalizing persons with mental illness or DD in public and private facilities and failing to ensure that they are offered a meaningful opportunity to live in integrated community settings consistent with their needs. The United States looks forward to working with the State of Mississippi to develop an appropriate remedy to resolve these concerns.
During our investigation, we assessed the State's compliance with the ADA, as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999), requiring that individuals with disabilities, including mental illness and developmental disabilities, receive services and supports in the most integrated setting appropriate to their needs. The Department has authority to seek a remedy for violations of Title II of the ADA, 42 U.S.C. § 12133; 28 C.F.R. §§ 35.170-174, 190(e). We also initiated our investigation pursuant to the Civil Rights ofInstitutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, which authorizes the Onited States to seek a remedy for conduct that violates the constitutional or federal statutory rights of individuals with disabilities who are in public institutions. Under CRIPA, we assessed the State's compliance with other federal laws,

1 In this letter, we use the global term "developmental disabilities" or "DD" to include people with an intellectual and/or developmental disability, including, but not limited to, mental retardation, cerebral palsy, Down syndrome, autism, as well as acquired brain injury.

2 

including the Medicaid portion of the Social Security Act, and its Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) provisions, 42 U.S.C. §§ 1396 et seq and the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. In our investigation, we did not assess or reach conclusions about the quality of clinical care in the various facilities and programs, focusing instead on potential issues related to the unnecessary segregation of people with disabilities.
In accordance with the statutory requirements under CRIPA, 42 U.S.C. § 1997b(a), the implementing regulations of the ADA, 28 C.F.R. § 35.172(a), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1, this letter provides notice of the State’s failure to comply with federal law, most notably, by failing to provide services to individuals with mental illness and/or developmental disabilities in the most integrated setting as required by the ADA. We have also set forth in this letter the steps Mississippi needs to take to meet its obligations under federal law. By implementing the remedies below, the State will correct identified ADA and other unlawful deficiencies, fulfill its commitment to individuals with disabilities, and spend taxpayer dollars far more effectively.
We would like to express our appreciation to the State for its cooperation. We would like to acknowledge the consistent hospitality, courtesy, and professionalism shown to us by State officials and staff at all levels and at all times. It was evident that State personnel regularly demonstrated true concern for and commitment to the people they serve. It was a pleasure for us to meet the individual board members on the Mississippi Board of Mental Health, led by Board Chair Robert Landrum. We would also like to extend a special thanks to DMH Executive Director LeGrand for repeatedly taking time out of his busy schedule to meet with us, and for generally facilitating our review. We hope to continue to work with the State in the same cooperative and collaborative manner as we work to resolve our findings.
I. SUMMARY OF FINDINGS AND CONCLUSIONS
“I’m really wanting to get out.” These words were spoken to DOJ civil rights investigators by a person confined to a Mississippi facility. They illustrate the urgency of our findings. Thousands of Mississippi residents with mental illness or developmental disabilities are institutionalized. While confined in these institutions, they are segregated from non-disabled persons and lead lives of limited choice or independence. They are deprived of meaningful opportunities to choose friends, participate in employment, or make choices about activities, food or living arrangements. In the words of the Supreme Court: “Unjustified isolation … is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597.
We conclude that the State of Mississippi fails to provide services to qualified individuals with disabilities, including mental illness and developmental disabilities, in the most integrated settings appropriate to their needs, in violation of the ADA. This has led to the needless and prolonged institutionalization of adults and children with disabilities who could be served in more integrated settings in the community with adequate services and supports. Further, systemic failures in the State’s system place qualified individuals with disabilities at risk of unnecessary institutionalization now and going forward.

3
Our specific findings include:
 Sweeping, powerful trends over the past half-century have prompted other states to move away from serving people with disabilities in large, outdated, segregated, institutions toward more individualized, independent, effective care in integrated community settings. These changes have enabled people with disabilities to live rich lives alongside their nondisabled peers and family members. Yet Mississippi continues to over-rely on public and private institutions. As a result, Mississippi’s service system for persons with disabilities is the most institution-reliant system in the United States. Mississippi is consistently ranked as one of the worst, and often the worst, on measures of whether persons with disabilities are being served in integrated settings. Mississippi also spends more money proportionally on institutional care, and less on community services, than any other state.
 The State is still engaged in the process of opening new and expensive institutions to serve persons with disabilities. This construction runs counter to well-established professional and legal dictates, including those set forth in the ADA, that persons are entitled to receive services in the most integrated settings appropriate to their needs.
 In spite of recent commitments to build community capacity and better serve persons with disabilities in integrated community settings, the State has done little to change the institutional status quo. In fact, Mississippi is the only jurisdiction in the country that serves more than 25 percent of the people with DD in its system in large state institutions.
 Individual’s treatment plans capture their hopes and dreams to live in the community and have meaningful days, just like people without disabilities. Nonetheless, the State fails to make community life a reality for all but a few individuals.
 The State has never fully funded or implemented its own Olmstead Plan to come into compliance with the legal mandates of the ADA and the Supreme Court’s Olmstead opinion.
 The State has taken insufficient steps to reallocate existing resources for mental health and developmental disabilities. Mississippi has not taken full advantage of Medicaid support for community services such as the Home and Community-Based Services Waiver program for people with DD and state-plan services for people with mental illness. These programs would facilitate the transition of persons with disabilities to community settings with ongoing services supported by a generous federal contribution.
 In spite of potential cost savings, and in spite of a recurring multi-million dollar annual deficit, Mississippi has continued to fund expensive institutional care, even though less costly and more effective alternatives exist in the community. In recent years, Mississippi spent 55 percent of its mental health budget on institutional care, while nationwide states spent an average of 27 percent of their budgets on institutions. Similarly, Mississippi spent 68 percent of its DD budget on institutional settings, while the national average was 33 percent.

4 

 It is far more costly to serve a person with disabilities in an institutional setting in Mississippi than it is to serve the person in an integrated community setting. It costs about $110,000 per year to serve a person in one of the State’s DD facilities and only about $27,000 per year to serve a person with DD in the community – a cost savings of about $83,000 per person. Mississippi could serve roughly four persons with DD in the community for every one it serves in its institutions.
 It costs about $150,000 per year to serve a person in one of the State’s mental health institutions. Mississippi must pay for these institutional services with state-only dollars because the 74% matching contribution from the federal government through Medicaid is unavailable for services delivered in mental health institutions. Serving a person with mental illness in the community costs as little as $44,500 per year and enables the State to pay for the majority of those services with federal Medicaid dollars. Mississippi could serve roughly four persons with mental illness in the community for every one it serves in its institutions.
 The State’s reliance on institutional care harms residents of institutions. Not only are individuals segregated and denied the opportunity to participate in the everyday activities of community life, but they are subject to stigma and at risk of physical harm. Their institutionalization also keeps them from their families. They are often required to live hours away from their friends and families.
 There is inadequate community capacity in Mississippi to meet the needs of persons with mental illness and developmental disabilities, including a lack of intensive community supports like Assertive Community Treatment (“ACT”), crisis services, waiver services, peer supports, and safe, affordable, and stable housing. This lack of community capacity has led to unnecessary and prolonged institutionalization and an increased risk of unnecessary institutionalization for persons in need of community services, in violation of the ADA’s integration mandate.
 The State’s longstanding failure to develop sufficient community services has forced families struggling to support loved ones with disabilities to choose between living without needed services and placing loved ones in institutional care. The inadequate community services continue to serve as a significant barrier to the discharge of individuals from the State’s institutions.
 Mississippi’s lack of community capacity contributes to negative outcomes in the community where individuals with disabilities are forced to obtain needed services at inappropriate and costly venues, such as emergency rooms or institutional settings. For some, lack of community services can lead to homelessness and incarceration.
Reliance on unnecessary institutional care both violates the civil rights of people with disabilities and incurs unnecessary expense. Community integration with appropriate services and supports will permit the State to support people with disabilities in settings appropriate to their needs in a more cost-effective manner.

5
II. INVESTIGATION
On February 25, 2011, pursuant to the ADA and CRIPA, we notified you that we were initiating an investigation of the State’s mental health and DD systems. Over the course of the next several months, we conducted visits to programs owned, operated, and/or funded by the State.
 In May and June, we met with State leadership, including Department of Mental Health (“DMH”) Executive Director, Edwin C. LeGrand, III; we conducted a walkthrough tour of the Mississippi State Hospital and the Hudspeth Regional Center in Whitfield; we met with officials at the Region 8 Community Mental Health Center (“CMHC”) in Brandon; and we visited some community programs in and around Jackson that are under the administrative control of the State.
 In August, accompanied by a team of experts in serving children and adults in integrated community settings, we conducted in-depth onsite reviews at a number of mental health and DD facilities throughout the state, including: the East Mississippi State Hospital in Meridian, the South Mississippi State Hospital in Purvis, the Crisis Stabilization Unit in Brookhaven, the Specialized Treatment Facility in Gulfport, the Crisis Stabilization Unit in Laurel, the Region 8 CMHC, and the Region 12 CMHC in Hattiesburg. We also toured several DD facilities and programs, including the Boswell Regional Center in Magee, the Mississippi Adolescent Center in Brookhaven, the Ellisville State School, and Hudspeth, as well as several off-campus and community residences. Consistent with our commitment to provide technical assistance where appropriate and to conduct a transparent investigation, we facilitated an exit conference in which our expert consultants shared their initial, preliminary impressions and conclusions with State officials, including top DMH leadership.
 In September, we met with the executive directors from a number of CMHCs throughout the state and with leadership within the Mississippi Division of Medicaid. We attended a Board of Mental Health meeting and met all of the board members in attendance.
 In November and December, we met with leadership of the Region 6 CMHC in Greenwood, visited the North Mississippi Regional Center in Oxford, met with friends and family organizations at North Mississippi Regional Center and at Hudspeth, and met with officials from the State’s central office in Jackson.
 In conducting our onsite visits, we interviewed administrators, professionals, direct care and other staff, as well as the individuals who were receiving the services and supports in the State’s system. Before, during, and after our visits, we reviewed a wide range of documents, including statewide plans and reports, individual support plans, discharge plans, policies and procedures, incident reports, and health care and mental health care records.

6 

 Throughout the investigation we met with and interviewed advocates and service providers. We visited private providers and facilities and met with members of local and regional public interest and advocacy organizations.
 Our investigation was also informed by interviews with people with disabilities and their families. Our team and expert consultants spoke with individuals while visiting facilities, at two open community forums, at two friends-and-family meetings at DD facilities, in phone calls, and on visits to community providers. These meetings and interviews provided valuable information about gaps in the DD and mental health service systems and about the challenges that persons being served by those systems face. These contacts also informed us of the hopes, aspirations and worries of people with disabilities and their families. People with disabilities and their family members expressed the view that Mississippi’s system needs to be transformed to enable all people with disabilities the opportunity to live in the community, regardless of the nature of their needs. Many people told us they now have no real choice but institutional care.
III. BACKGROUND
A. Mississippi Board of Mental Health and the Department of Mental Health
About 40 years ago, the Mississippi Legislature created DMH, making it responsible for services related to mental health, substance abuse, and developmental disabilities that had been scattered among various other offices throughout state government. The Mississippi Board of Mental Health is DMH’s governing body; the board is composed of nine members appointed by you and confirmed by the State Senate. The Board has appointed Mr. LeGrand as the current Executive Director of DMH; his primary responsibility is to head the DMH Central Office and to oversee the operations of various facilities and off-campus programs for individuals with disabilities throughout the state.
B. The State’s System for Serving Persons with Developmental Disabilities
The State, through DMH, directly operates six institutions for persons with DD: the South Mississippi Regional Center in Long Beach, Ellisville State School regional center, the Boswell, Hudspeth, and North Mississippi regional centers, and the Mississippi Adolescent Center. All of these DD facilities offer residential services; the regional centers also offer offcampus residential services, including a total of about 60 ten-bed facilities, operated by the nearby State institutions and staffed with employees on the institutions’ payroll. These large offcampus group homes are certified as Intermediate Care Facilities (“ICFs”), just like their larger administrative-parent institutions.

7 

As of October 19, 2011, there were 1,959 persons with a developmental disability living at State-run institutional facilities or nearby off-campus ICFs.2 Mississippi licenses six additional private facilities operating 689 more ICF beds, which receive State funding through Medicaid and are part of the State’s DD system. The State also offers some community services and supports through its “Intellectual Disabilities/Developmental Disabilities” Medicaid Home and Community-Based Services Waiver (“IDD waiver”), authorized pursuant to § 1915(c) of the Social Security Act’s Medicaid program. Services offered under the waiver include support coordination, attendant care services, pre-vocational services, day habilitation, in-home nursing respite, supported employment, supervised residential habilitation, in-home companion respite, supported residential habilitation, and various therapies. In FY 2011, the State funded 1,817 IDD waiver slots at an annual average cost of about $27,000 per slot. There were also over 1,900 persons on the IDD waiver waitlist.3
In addition, DMH certifies and provides funding to organizations to offer community services and supports to persons with DD not receiving waiver services, including: case management, early intervention services, work activity centers, day support, supported employment, and community living supports.
C. The State’s System for Serving Persons with Mental Illness
The State, through DMH, directly operates four psychiatric hospitals: the North Mississippi State Hospital in Tupelo, Mississippi State Hospital, East Mississippi State Hospital, and South Mississippi State Hospital. DMH also operates the Central Mississippi Residential Center in Newton, to provide transitional services for adults with serious mental illness, and the Specialized Treatment Facility for adolescents with mental health issues. All six of these mental health facilities offer inpatient, residential services; two psychiatric hospitals offer some offcampus residential services.
A large number of persons with mental illness receive mental health services at or through one of the State’s mental health institutions. An average total of about 900 persons resided in one of the six State mental health institutions at any given time in the past fiscal year.4
2 On October 19, 2011, the ICF census at each facility was: Ellisville – 606; North Mississippi – 485; Hudspeth – 402; South Mississippi – 240; Boswell – 198; and the Mississippi Adolescent Center – 28.
3 This federal waiver program is authorized by § 1915(c) of the Social Security Act and permits states to furnish an array of home and community-based services that assist Medicaid beneficiaries to live in the community and avoid institutionalization. The federal government gives states broad discretion to design their waivers to address the individualized needs of the waivers’ target population. A similar arrangement exists with regard to funding community services for persons with mental illness through state-plan service programs.
4 Based on figures through June 30, 2011, the average daily census totals at the mental health facilities for FY 2011 were: Mississippi State Hospital – 401; East Mississippi State Hospital – 311; North Mississippi State Hospital – 49; South Mississippi State Hospital – 44; Central Mississippi Residential Center (including the crisis stabilization component) – 55; and the

8 

However, the 900 people in the State’s psychiatric hospitals at any given time do not paint a complete picture of the State’s reliance on psychiatric institutions; many more than 900 individuals rely on services in the State’s psychiatric institutions over the course of a year. Using conservative figures, in FY 2011, there were 4,320 total admissions to the State’s six mental health facilities.5
There are about 540 additional licensed beds for people with mental health needs located in two private psychiatric hospitals, 14 hospital-based psychiatric facilities, and 298 private psychiatric residential treatment facility (“PRTF”) beds for youth throughout the state, which receive State funding and are part of its mental health system. The State places children in PRTF beds in Mississippi and contracts for additional beds at three more PRTFs outside the State. In addition, the State certifies and funds organizations offering services to children with mental illness or emotional disorders and for persons with substance abuse needs.
The State, through DMH, also exercises umbrella authority over the network of CMHCs located throughout the state. The CMHCs are autonomous public bodies governed by regional commissions. There are 15 CMHC regions throughout the state. The CMHCs are the primary service providers with whom DMH contracts to furnish a range of community-based mental health and substance abuse services to persons with disabilities; some CMHCs also provide DD services. DMH is responsible for certifying, monitoring, and assisting the CMHCs. Each CMHC either operates or has access to a neighboring CMHC’s 16-bed Crisis Intervention Center (“CIC”) to provide stabilization and treatment services to persons who are in psychiatric crisis. The CICs are in Laurel, Brookhaven, Corinth, Batesville, Newton, Cleveland, and Grenada.
D. Cost of Providing Services to Individuals with Disabilities in Mississippi
As discussed in greater detail below, State figures reveal that the average cost of institutionalizing a person in one of the State’s DD facilities (the five DD regional centers and the Mississippi Adolescent Center) is approximately $110,000 per year. In contrast to the high institutional expense, the FY 2011 cost of serving a person with DD in the community through the IDD waiver is approximately $27,000 per year. Given this, Mississippi can serve roughly four people with DD in the community for each person served in one of its institutional facilities.
Specialized Treatment Facility – 40. The totals in this section only include residential services offered on the adult and adolescent psychiatric units at the Mississippi State Hospital and the East Mississippi State Hospital.
5 FY 2011 admissions were: Mississippi State Hospital – 1,650; East Mississippi State Hospital – 1,095; North Mississippi State Hospital – 526; South Mississippi State Hospital – 546; Central Mississippi Residential Center (including the crisis stabilization component) – 428; and the Specialized Treatment Facility – 75.

9 

The average cost of institutionalizing a person in one of the State’s mental health facilities is approximately $150,000 per year.6 The State has estimated that serving an individual with mental illness and complex needs in the community through ACT costs about $36,500 per year, and that the cost of serving children with mental illness in the community through the Mississippi Youth Programs Around the Clock (“MYPAC”) program is about $28,000 per year. Adding in the cost of supportive housing and housing supports still only increases the community mental health totals to between $44,500 and $61,500 per year. Moreover, many of these intensive community supports are Medicaid-reimbursable, so the State would share the cost with the federal government, while institutional care for individuals with mental illness is borne entirely by the State.7 Thus, even allowing for additional costs associated with housing and other supports, the community cost remains significantly less than the institutional cost. Taking into account the federal contribution, the State could serve more than four people with mental illness in the community for each person served in one of its institutions.
E. Individual and Family Impacts of Institutionalization
Undue segregation causes harm to the individuals who are unnecessarily institutionalized. See Olmstead, 527 U.S. at 601. Life in an institution leads not only to stigma and isolation, but also to regression, increased negative behaviors, learned helplessness, and physical harm.8 See Marlo M. v. Cansler, 679 F. Supp.2d 638 (E.D.N.C. 2010) (finding unnecessary institutionalization leads to regressive consequences that cause irreparable harm); Long v. Benson, 2010 WL 2500349 (11th Cir. Jun 22, 2010) (affirming district court’s grant of preliminary injunction based on irreparable injury of unnecessary institutionalization); Disability Advocates, Inc. v. Paterson,, 653 F. Supp.2d 184, 320 (E.D.N.Y. 2009). Large group settings serving many people with disabilities, including behavioral issues, create a fertile environment for individuals to learn maladaptive behaviors. These settings also limit choice in daily life
6 This estimate is based on services at on the receiving, continued treatment, and adolescent units at the State’s four psychiatric hospitals, and on the cost of services at the Central Mississippi Residential Center, and the Specialized Treatment Facility.
7 For persons with DD, both institution-based services and community care are funded through Medicaid, with a combination of state and federal dollars; in Mississippi, the State enjoys a generous Medicaid match, in which the federal government contributes about three dollars for each state dollar of funding. While institutional DD services are eligible for this federal financial contribution, the cost to serve a person in a mental health institution is borne by the State alone, with no federal matching contribution.
8 We understand that some parents are concerned about safety and quality of care in community settings. However, history has shown that, in addition to the inherent harm of unjustified isolation, individuals regularly suffer injuries and abuse in institutions. The best way to ensure safety in any setting is to develop and implement a strong quality assurance process whereby professionals regularly review and assess safety, treatment, and services, implementing corrective action whenever necessary. Any remedial plans to address the violations we found in this investigation must include the development of a robust quality assurance system for all settings.

10 

regarding questions as basic as when to wake up, what to eat, who to live with, and how to spend one’s day. Without choice, independence, and interaction with nondisabled peers, individuals do not realize their abilities.
Children are especially harmed by placement in institutions, as they learn best from positive models in small family settings. When children are placed in institutional settings, they, instead, tend to learn negative behaviors from peers in the institution. Attending schools with nondisabled peers is also a central component of children’s socialization and development, and the children in institutions rarely attend local schools with their nondisabled peers.
Families are also harmed when their loved ones are placed in institutional settings. Often, the institutions are far from home and it is difficult to visit regularly and maintain a close relationship with the individual who is institutionalized. One parent wrote to us of her dream that her children could one day be closer to home, “I am 79 years old and, due to my health, I am rarely able to visit them. I pray you can help in having them placed closer to home.” Parents also shared with us how difficult it was to place their children in institutions when they felt support did not exist for them in the community. Unnecessary institutionalization harms both the individual who is placed and those who love that person.
IV. FINDINGS AND CONCLUSIONS
We conclude that Mississippi fails to provide services to qualified individuals with disabilities, including mental illness and developmental disabilities, in the most integrated setting appropriate to their needs as required by the ADA.
A. The ADA Requires States to Serve Individuals in the Most Integrated Settings Appropriate
In enacting the ADA in 1990, Congress set out a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1). Congress found that “society has tended to isolate and segregate individuals with disabilities,” that this is a form of discrimination against individuals with disabilities, and that this continues to be a “serious and pervasive problem.” 42 U.S.C. § 12101(a)(2).9 Congress found that discrimination against individuals with disabilities often exists in such critical areas as institutionalization, housing, public accommodations, health services, access to public services, and employment. 42 U.S.C. § 12101(a)(3). Congress emphasized that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full
9 Nearly 20 years before enacting the ADA, Congress recognized that society historically had discriminated against people with disabilities by unnecessarily segregating them from their families and communities, and in response, enacted Section 504 of the Rehabilitation Act of 1973, which forbids any program receiving federal aid from discriminating against an individual by reason of a handicap. See 28 C.F.R. § 41.51(d) (“[r]ecipients [of federal financial assistance] shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons”). Our findings and conclusions in this letter also implicate the State’s compliance with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.

11 

participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(8).10
Title II of the ADA prohibits discrimination on the basis of disability by public entities. A “public entity” includes any State or local government, as well as any department, agency, or other instrumentality of a State or local government. Title II applies to all services, programs, and activities provided or made available by public entities, including through contractual, licensing, or other arrangements. 42 U.S.C. § 12131(1); 28 C.F.R. § 35.102(a); 28 C.F.R. § 35.130(b). Thus, the State of Mississippi and its agencies are covered by the ADA and are prohibited from discriminating in the delivery of mental health and DD services.
In Title II, Congress established a straightforward prohibition on discrimination: “no qualified individual with a disability11 shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA’s implementing regulations mandate that a “public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The “most integrated setting appropriate to the needs of qualified individuals with disabilities” means “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 app. A. at 572 (July 1, 2010).
In construing the anti-discrimination provision contained within the ADA, the Supreme Court held that “[u]njustified isolation … is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. The Court recognized that unjustified institutional isolation of persons with disabilities is a form of discrimination because the institutional
10 Congress also stressed that such discrimination and prejudice costs the United States “billions of dollars in unnecessary expenses resulting from dependency and non-productivity.” 42 U.S.C. § 12101(a)(9). This is notable, especially today, given the fiscal and budgetary pressures confronting many states, including Mississippi.
11 People with mental illness or developmental disabilities are protected by the ADA. “Disability” is defined broadly, with respect to an individual, as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.” 28 C.F.R. § 35.104. “Mental impairment” includes any mental or psychological disorder such as emotional or mental illness, mental retardation, and specific learning disabilities; and the phrase “major life activities” includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Id. Persons served in the State’s mental health system are “qualified” individuals with a disabilities because “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, [they meet] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).

12 

placement of persons who can handle and benefit from community settings “perpetuates unwarranted assumptions that persons so isolated are incapable or untrustworthy of participating in community life” and because “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-01.
The Court described the dissimilar treatment persons with disabilities must endure just to obtain needed services: “In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.” Id. at 601.12
A violation of the ADA’s integration mandate is established if the institutionalized individual is “qualified” for community placement – that is, he or she can “handle or benefit from community settings,” and the affected individual does not oppose community placement. Id. at 601-03. Indeed, the Court stressed that states “are required” to provide community-based treatment for qualified persons who do not oppose placement in a more integrated setting unless the State can establish an affirmative defense. Id. at 607.
Contrary to the requirements of the ADA and its implementing regulations, none of the State’s large public or private institutions enable individuals with disabilities to “interact with non-disabled persons to the fullest extent possible.” Instead, individuals housed at these facilities live isolated lives, largely cut off from the rest of society. Cf. Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 224 (E.D.N.Y. 2009) (finding that “many people with mental illness living together in one setting with few or no nondisabled persons contributes to the segregation of [a]dult [h]ome residents from their community.) Most spend their entire day, every day, in an institutional setting. Individuals housed at an institution are offered very limited opportunities day-to-day for community integration or meaningful employment, and, as a result, have few opportunities to interact with their non-disabled peers in community settings outside the institution. Moreover, the State’s institutions limit individual autonomy and provide limitations on people’s choices, even while onsite. See also Benjamin v. Dep’t of Pub. Welfare, 768 F. Supp. 2d 747, 750 (M.D. Pa. 2011) (noting that individuals in facilities were segregated when they lived in units ranging from 16-20 people, primarily received services on the grounds of the facilities, and had limited opportunities to interact with non-disabled peers). By contrast, community-based programs are integrated services both because they are physically located in
12 Olmstead, therefore, makes clear that the aim of the integration mandate is to eliminate unnecessary institutionalization and to enable persons with disabilities to participate in all aspects of community life. This is consistent with guidance from the President. See, e.g., Press Release, The White House, “President Obama Commemorates Anniversary of Olmstead and Announces New Initiatives to Assist Americans with Disabilities” (June 22, 2009) (in announcing the Year of Community Living Initiative, President Obama affirmed “one of the most fundamental rights of Americans with disabilities: Having the choice to live independently.”).

13 

the mainstream of society and because they provide opportunities for people with disabilities to interact with non-disabled persons in all facets of life.
B. Mississippi Violates the ADA by Over-Relying on Institutions
Mississippi relies more heavily on large institutional settings for people with disabilities than any other state. Mississippi is consistently ranked as one of the worst, and often the worst, on measures of whether persons with disabilities are being served in integrated settings. Both its own data and national data show that the State spends less proportionally on community services and more on institutional placements than any other state. In fact, Medicaid is currently offering incentives to states that rely too heavily on institutional services to rebalance their systems of care through its Balancing Incentives Payments Program. Mississippi is the only state that is eligible for a 5 percent federal contribution enhancement due to the severity of its imbalance. Mississippi’s over-reliance on institutions is longstanding, in spite of sweeping and powerful trends over the past half-century that have prompted other states to move away from serving people with disabilities in large, outdated, segregated institutions and toward more individualized, independent, effective care in integrated community settings. Mississippi’s heavy emphasis on providing services to persons with disabilities in restrictive institutional settings indicates that the State is failing to provide needed services in the most integrated setting as required by the ADA.
1. Mississippi Studies
In recent years, Mississippians have recognized, and reported on, the State’s overreliance on institutional care to serve persons with disabilities. The most comprehensive report was issued in 2008 from the Mississippi Legislature’s Joint Committee on Performance Evaluation and Expenditure Review (“PEER”).13 J. Legis. Comm. on PEER, Rep. to the Miss. Leg. No. 511, Planning for the Delivery of Mental Health Services in Mississippi: A Policy Analysis (June 26, 2008). The Mississippi PEER committee concluded that the Board of Mental Health had not focused on developing adequate community-based programs and reallocating resources to meet the emergent needs of persons with mental illness in Mississippi. The PEER report continues to have relevance today.
The PEER committee concluded that Mississippi was out-of-step with national trends and was failing to meet the needs of persons with disabilities in integrated community settings: “Although the mental health environment in the United States has dramatically changed from an institution-based system to a community-based system in recent years, Mississippi’s mental health system has not reflected the shift in service delivery methods.”14
13 In response to citizen complaints alleging the inefficient use of resources by DMH, the PEER committee performed an analysis of how Mississippi delivers mental health services to persons with mental illness and/or developmental disabilities in the state. The PEER report was sent to you, the Lieutenant Governor, and leadership within the State Legislature in June 2008.
14 The Mississippi PEER committee recognized that service delivery throughout the United States had shifted from an institutional model to a predominantly community model: “the

14 

The committee recognized that due to the ADA and the Olmstead opinion, “the state will be forced to move toward providing more community-based care in the near future.” The committee concluded that the State was not in a good position to address outstanding issues because the Mississippi Board of Mental Health “has not aggressively sought plans for reallocation of resources to meet emerging needs in addition to efforts to seek additional funding to meet those needs … [thus,] allowing the development of community-oriented programs to fall behind.”
Just last year, the Mississippi Psychiatric Association (“MPA”) submitted a report to various legislative subcommittees, concluding that the State’s current model of delivering mental health care was a “broken non-system,” and that DMH was pursuing a course of action that was counter to the concept of community-based care. MPA faulted the Board of Mental Health for failing to develop and implement effective services for those with serious mental illness, thus, causing them to receive “inadequate, community-based treatment, resulting in their consuming more expensive resources because of repeated admissions to local emergency departments, local hospitals, and state institutions.” When adequate community services are not available, MPA concluded that persons in crisis are “at risk for further decompensation, followed by hospitalization or confinement in jail.” MPA called on the DMH Board to make addressing the needs of individuals with serious mental illness a top priority, to rely less on inpatient services, and to focus more on the development of adequate community programs, especially adequate and appropriate housing. MPA concluded that the State has pursued brick and mortar projects while the national trend has been toward reallocation of resources to community-based programs.
2. National Studies
National reports also demonstrate that Mississippi relies more heavily on institutional care than do other states. In its 2011 annual report, “The Case for Inclusion,” United Cerebral Palsy (“UCP”) ranked Mississippi last in terms of supporting individuals with DD in smaller community settings of three people or less. UCP concluded that Mississippi served less than half of the persons with DD in its system in such small community settings, even though the national average was 80 percent; Nevada, Vermont, and Arizona served more than 95 percent of persons with DD in their systems in community settings of three persons or less.
UCP also ranked Mississippi 51st among all 50 states and the District of Columbia in terms of allocating resources to persons with developmental disabilities in the community. UCP concluded that Mississippi devoted only one-third of its total DD expenditures to non-ICF community settings; by contrast, a total of 31 jurisdictions devoted 80 percent or more of their
dominant thrust in national mental health policy in the twentieth century moved away from housing clients in large state institutions and toward treating individuals in a community setting … [since the 1960’s] public mental health policy nationwide has trended toward diminishing the role of public mental hospitals and toward an increased reliance on outpatient community services.”

15 

total DD expenditures to the community and a few states spent 99 percent or more on funding integrated community settings.15 The national average allocation of resources to people in nonICF settings was 77 percent of expenditures.
In fact, UCP has ranked Mississippi last in its overall list since UCP began ranking the states in 2007. UCP reported that Mississippi is the only jurisdiction in the country that serves more than 25 percent of the persons with DD in its system in large state institutions, while the national average is just 3.3 percent, and 41 jurisdictions serve 5 percent or fewer in large state institutions. Nine states and the District of Columbia have no state institution for persons with DD; 13 other states only have one large state facility remaining.
The National Alliance on Mental Illness (“NAMI”) found that Mississippi has a higher per capita rate of state psychiatric beds than any other state in its “Grading the States 2009: A Report on America’s Health Care System for Adults with Serious Mental Illness.” This overreliance on hospital beds is also reflected in State spending. In its 2011 report, “State Mental Health Cuts: A National Crisis,” NAMI reported that in 2006, Mississippi spent only 46 percent of state mental health agency funding on community mental health services; the national average is about 70 percent. Moreover, NAMI reported that from 2009 to 2011, Mississippi cut its state mental health budget by over $38 million – as a percentage of its overall state mental health budget, this is more than all but seven states. By contrast, NAMI reported that 19 states, including the nearby states of Florida, Georgia, Alabama, Kentucky, and Arkansas, increased their state mental health budgets during this time.
3. State Construction of New Institutions
Not only is Mississippi continuing to rely heavily on existing large institutions built decades ago in another era, but the State is still investing in opening new institutions to serve persons with disabilities. This runs directly counter to well-established professional and legal dictates, including those set forth in the ADA, that persons with disabilities fare better in, and are entitled to live in, integrated community settings.
One of the most disheartening aspects of our onsite inspection was touring the newly constructed buildings for persons with DD on the Boswell campus. The new construction was very institutional – the building we toured had three wings with about a dozen bedrooms on either side of a long hall on each wing with a common day room at the end of each hall. Plans called for rooms to possibly be used for time-out or restraint. We understand the four new institutional buildings were going to serve about 140 persons with developmental disabilities.
The institutional construction in Mississippi would have fit in neatly a half century ago, at the height of states’ reliance on institutional care, but it is entirely out of place in 2011.
15 See also David Braddock, Richard Hemp & Mary C. Rizzolo, The State of the States in Developmental Disabilities 2011 (in FY 2009, Mississippi spent 80 percent of the federal funding it received for persons with DD on institutional care in ICF settings, spent over 61 percent of available DD dollars on institutional services, and served 67 percent of all persons in the State’s DD system in institutional or congregate settings of seven persons or more).

16 

Moreover, the new institutional buildings at Boswell were expensive – the State informed us that the original cost of the new construction was over $7 million. This is a high price to pay for a service that only brings Mississippi farther away from complying with the ADA. State leadership could have used this money to build needed capacity in the community that, as we discuss below, would have served many more persons with disabilities than the 140 or so to be served on the Boswell campus.
The new institutional construction at Boswell is not an isolated example, but is merely the latest in a steady stream of newly built or renovated institutions operated by DMH in the past decade. Mississippi opened the following residential facilities in recent years: the aforementioned four buildings at Boswell (2011), the Specialized Treatment Facility (2004), the South Mississippi State Hospital (2000), and the North Mississippi State Hospital (1999). In addition, the State has built the Central Mississippi Residential Center (2003), dozens of ten-bed off-campus ICF residences for persons with DD, and is planning and constructing new buildings at East Mississippi State Hospital.16
C. The State is Violating the ADA By Failing to Serve Qualified Individuals with Disabilities in the Most Integrated Setting
Mississippi is violating the ADA by failing to provide alternatives in integrated community settings to qualified individuals currently in institutions. See Olmstead, 527 U.S. at 607.
Persons currently residing in institutions in Mississippi are “qualified” for community placement. Indeed, during our visits, various officials acknowledged that persons institutionalized in Mississippi could transition to and live in the community with adequate and appropriate services and supports. Right now, scores of qualified individuals with disabilities live in Mississippi institutions who can handle and would benefit from community placement pursuant to Olmstead. Mississippi continues to institutionalize individuals whom other states have long served in the community. For example, over 35 percent of the people whose individual support plans we reviewed were diagnosed with mild or moderate intellectual disabilities. The Mississippi PEER report found that more than 500 individuals with mild or moderate mental retardation were confined in DMH institutions in 2007, and that, “[a]n evaluation of clients’ individual needs could result in appropriate transitioning of some clients from institution-based service delivery to community-based service delivery.”
With support these individuals could return home or avoid institutionalization. For example, one child with autism lived in one of the State’s institutions for five years. Once he was provided with Medicaid community-based waiver services, including behavioral support and
16 In responding to the PEER report in 2008, the Board of Mental Health clarified that many of the newly built or renovated institutional facilities, including the mental health facilities, the Specialized Treatment Facility, as well as the ten-bed ICFs, were initiated not by DMH, but by the legislature. The Board noted that DMH Executive Director LeGrand, had frequently stated in public that future expansion by DMH will not be “brick and mortar.”

17 

attendant care, he was successfully able to move back home with his family. Another young woman with Rett syndrome was able to remain at home and avoid entering an institution because she receives total care at home through the waiver, including attendant care, nursing care, medical supplies, a wheelchair, and short-term respite care. Many others could return home or avoid institutionalization altogether if they received sufficient care and support in the community.
When individuals in institutions do not oppose, and especially when they affirmatively request community placement, it is the State’s responsibility to develop and implement prompt and effective steps to transition and then place and serve them in integrated community settings. Yet during the course of our investigation, we commonly found examples of people who had affirmatively expressed an interest in leaving their institutional setting, wanting to live instead in the community. For example, one man with a diagnosis of a mild intellectual disability states in his plan that his vision for the future is to live in his own home and work at Walmart. Another man with a mental illness approached our team during a visit to a State hospital and immediately said, “I’m really wanting to get out.” Vision statements and objectives in many plans articulate the individuals’ goals of integrated settings. Too often, we found, their requests were not granted in a timely manner, or at all.
1. Institutional Thresholds to Placement
Treatment teams and those responsible for assisting families in accessing services in Mississippi often require individuals with disabilities to meet goals unrelated to success in the community before recommending transition to the community. Individuals, families, and teams should all be involved in a robust discussion of needed supports and placement options before even entering an institution. Once admitted, families and teams should work toward placement in the most integrated setting appropriate and consider what services would enable individuals to succeed in the community. See Messier v. Southbury Training Sch., 562 F.Supp.2d 294, 322323 (D. Conn. 2008).
Instead of quickly identifying necessary supports and developing treatment plans to offer that support in the community, the State has a pattern of serving individuals in institutional settings for years on end. During the course of our investigation, we learned that 20 people have been residing in State DD institutions for over 50 years, and approximately 70 percent of all regional center residents have lived at the regional center for more than a decade. Over two dozen people in the State psychiatric hospitals had been institutionalized for more than 20 years, including one woman who has been at Mississippi State Hospital since August 1967 – over 44 years. These long stays indicate that treatment teams are not working to transition people to appropriate community placements.
We discovered that some teams at the State’s DD institutions recommend community placement only after the individual acquires a certain skill or passes a certain threshold at the institution. For example, one young woman whose plan states that her family wants to consider community services remains in the facility and her individual support plan does not include a plan for arranging community supports, instead identifying goals such as stating her name and completing a puzzle. Similarly a young man whose goal is to live in a group home closer to his

18 

family stated that he was interested in touring a range of placements, but his plan makes no reference to arranging tours, instead proposing objectives such as flossing teeth and writing personal information. It is improper to deny an individual with DD access to an integrated community setting on this basis. Persons with DD need not jump through any artificial hoops at an institution merely to obtain their independence. Moreover, it is generally accepted that individuals with DD learn best in real world settings and that they often have difficulty generalizing skills obtained in stilted institutional environments.
Similarly, facility treatment plans for persons with mental illness similarly list barriers to discharge that relate to “compliance,” rather than to stabilization. This focus on obedience and hospital rules is disconnected from the skills the individual needs in order to live safely and successfully in the community. For example, one plan states that “the patient will be able to be discharged once his noncompliance with building rules has decreased.” Other plans require that individuals remain in the facility and demonstrate compliance with a plan for weeks or months after they stabilize. One person was required to “state to treatment team weekly one benefit of his medications as it related to his illness; his responses will be noted per treatment team notes for 5-6 weeks,” and another plan required that “the patient will exhibit effective management of psychotic and medical symptoms for 90 consecutive days.”17
We also found that some teams insist on evidence of markedly reduced behaviors before community placement will be considered for certain individuals. This is troubling, as the very nature of the institution itself – the lack of privacy, the noise, the forced interaction with others, the regimented scheduling – may actually cause or aggravate the person’s behaviors. As such, the institutionalized person’s behaviors may never abate and he or she will be confined to an institutional setting indefinitely, simply because of the deleterious nature of the institutional setting itself. This vicious circle captures the person in the least integrated setting and sets up a situation in which it will be very difficult for the person to get out. Staff at a DD facility told our team that even when one young man reaches the institutional goals in his plan, he will be retained in the facility for an unspecified period to ensure that his behavior does not deteriorate. For these and many other reasons, it is improper for teams to conclude that community placement is inappropriate until an individual with DD meets certain thresholds while still in the institution.
2. Facility Director Guardianship
In the Mississippi DD facilities, State facility directors serve as guardians or “surrogates” for a significant number of individual residents with DD. Specifically, the State directors are guardians for over 160 individuals (about eight percent of the total institutional DD census system-wide) across the six State facilities. Therefore, the State directors do not face any external opposition to community placement.
17 This emphasis on compliance is particularly problematic given that individuals in Mississippi’s psychiatric facilities are almost exclusively admitted through involuntary commitment proceedings and hospital compliance rules may compel them to remain longer than necessary – even beyond legal commitment parameters.

19 

In spite of this, we learned that the State directors had rarely, if ever, attended annual or other individual team meetings for their assigned surrogates. This is important because these team meetings can serve as a catalyst for community placement decisionmaking and action. Without the participation of the State director guardian, teams have made placement decisions inconsistent with the current integration emphasis of State leadership on the Board of Mental Health and in DMH. Even in cases where an individual and/or team members identified a goal of community placement, the surrogates did not attend and advocate for realizing that goal. In fact, staff at one facility erroneously disqualify people who have facility director surrogates from waiver services. Plans of individuals with facility director surrogates articulated this policy, stating, for example, “Due to the director of the Ellisville State School serving as the client’s surrogate he is not eligible to participate in the HCBW program at this time.” The failure of the facility directors to participate in the team process represents a lost opportunity to take tangible steps to help meet the needs of institutionalized persons in more integrated settings as required by the ADA.
DMH has recently created a number of Transition Coordinator positions to work with teams and administrators at the State DD facilities to help facilitate placement of individuals from institutions into the community. The work of the Transition Coordinators may prompt teams to develop written discharge plans for institutionalized individuals – plans that do not now currently exist for all but a handful of persons who are about to leave for another setting.
D. The State is Violating the ADA by Placing People at Risk of Unnecessary Institutionalization
In addition to those currently harmed by unnecessary institutionalization, many other individuals in the State are at risk of needless segregation in violation of the ADA. Courts have determined that the ADA’s integration mandate not only applies to individuals who are currently institutionalized, but also to individuals who are at risk of unnecessary institutionalization because of a jurisdiction’s administration of its health care delivery system. See M.R. v. Dreyfus, 2011 WL 6288173 (9th Cir. 2011) (finding risk of institutionalization when state reduced hours of in-home personal care); Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) (ADA applied to individual at risk of entering a nursing home); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) (same); Pitts v. Greenstein, 2011 WL 2193398 *2 (M.D. La. 2011) (“The ADA’s and Section 504’s ‘integration mandate’ prohibits a state from increasing an individual’s risk of institutionalization if reasonable accommodations are available”); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1170 (N.D. Cal. 2009) (stating that the risk of institutionalization is sufficient for a violation of the ADA); M.A.C. v. Betit, 284 F. Supp. 2d 1289 (D. Utah 2003) (same). The State violates the ADA when individuals face serious risk that they will be forced to enter an institutional placement, public or private, because they cannot get the support that they need in the community.
Due to insufficient community supports in Mississippi, many people with DD awaiting services, or in need of more comprehensive services, are at risk of unnecessary institutionalization. Pitts v. Greenstein, 2011 WL 2193398 *2 (M.D. La. 2011). Over 1,900 individuals with DD are on the waitlist for waiver services, yet only two individuals have gotten off the waitlist since the start of FY 2010. The State offers waiver slots to individuals on the

20 

waitlist on the basis of application date alone and fails to regularly assess individuals’ risk of institutional placement. If an individual or their family experiences a crisis, they may have no alternative other than institutional care. Moreover, as people on the waitlist get older and as their families age, they are at greater risk of institutionalization, unless they receive community-based support. A number of files we reviewed demonstrated that individuals currently in State facilities entered when family members had health crises and could no longer offer needed support on their own. One young woman lived at home for many years but entered an institution when her mother became ill. She continues to attend public school and could return to the community if her family had support. Families across the State have expressed a need for support, without which their loved ones will no longer be able to succeed at home.
When we met with family members and advocates of persons with DD who live in the community, they expressed frustration at the State’s confusing procedures to access school supports and related services, IDD waiver, supported living, and meaningful day programs. Several parents told us they do not want to place their children in institutions, but do require supports such as crisis intervention, respite care, and supervised living, to meet the needs of their loved ones. Because of the slow-moving waitlists for services and lack of necessary supports for these families, their loved ones are placed at significant risk of future institutionalization -- in many cases the only option for them to receive the services they need.
Individuals with mental illness also face a serious risk of unnecessary institutionalization and re-institutionalization. Many individuals in Mississippi cycle in and out of hospitals, local and state-run, because they do not receive the intensive supports that they need when discharged. Individuals have no alternative but to receive care in a hospital setting away from family, friends, and other natural supports, then return to their communities where they often get little treatment, destabilize, and return to the hospital. In FY 2010, we found that 437 adults were admitted at least twice to a Mississippi mental health hospital, that 86 persons were admitted three or more times, and that at least two people were admitted six or more times. State records revealed that one man had been admitted to a State psychiatric hospital 29 times in recent years. Many more likely cycled through local hospitals’ psychiatric units, CICs, or local jails.
Readmissions typically result from insufficient support in the community and inadequate coordination between treating professionals in facilities and those who support the individuals when they are in the community. In recent years, dozens of people with mental illness were discharged from one of the four State psychiatric hospitals to settings with few, inadequate, or no support services to meet their needs in the community, including personal care homes, halfway houses, shelters, or even the streets. Such settings do not provide the array of services that someone with a serious mental illness needs when transitioning back to the community, such as crisis supports, case management, transportation to medical appointments and community activities, and medication management. In particular, we understand that State hospitals regularly discharge people to personal care homes that often fail to meet the needs of the individuals who live there.18 Not surprisingly, many of these individuals were unnecessarily
18 In addition, we have learned that many of these homes fail to provide individuals with adequate food, clothing, medicine, access to health care, and reasonably safe conditions, including a physical environment free of environmental hazards. We also understand that in

21 

forced to return to the State psychiatric hospital for treatment, sometimes more than once in any given year.
At the time of placement, the State often fails to coordinate between the institutions and the community providers to ensure that there is in place an adequate array of services and supports in the community to meet the individual’s needs, creating a risk of reinstitutionalization. Community mental health centers are core providers supporting people with mental illness when they return to the community, yet they are not involved in treatment and discharge planning. Typically, the facility merely schedules an appointment for a person who is returning home at his local CMHC. In addition, there is very little communication between the hospital and the local provider in advance of a discharge. At best, the State attempts to ensure that an individual with mental illness has enough medication to make it to the next appointment with the psychiatrist. But this is only one critical component of the support that will enable success. In addition, as we discuss below, the individual may need other intensive community supports such as Assertive Community Treatment (“ACT”), case management, supported employment or assistance identifying other activities to remain engaged in the community, and supported housing or other housing assistance.
E. The State Must Realign and Expand Services to Support People in the Community
1. The State Has Failed to Implement Its Olmstead Plan
In response to the Supreme Court’s Olmstead decision, Mississippi was one of the first states in the country to develop an “Olmstead Plan.” One way a state can meet its obligations under Olmstead is to develop and implement a comprehensive and effective plan to move individuals with disabilities into the community, with any list of individuals waiting for services moving at a reasonable pace. See Olmstead, 527 U.S. at 584; see also Frederick L. v. Dept. of Public Welfare, 422 F.3d 151 (3rd Cir. 2005) (“[A] comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense.”); Pa. Prot. and Advocacy, Inc. v. Dept. of Public Welfare, 402 F.3d 374, 381 (3rd Cir. 2005) (“[T]he only sensible reading of the integration mandate consistent with the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA.”).
On March 23, 2001, the Mississippi legislature mandated the development of a comprehensive plan to provide services to people with disabilities in the most integrated setting appropriate to their individual needs. In issuing this directive, the legislature established a goal of no later than June 30, 2011, for the State to have community services available for all people with disabilities who met Olmstead criteria. For such individuals, the legislature stressed that they should receive the supports necessary to live as independently as possible, that supports should encourage the integration of people with disabilities into the community to the fullest extent possible, that supports should be flexible enough to accommodate the unique needs of the
some of these homes, staff abuse or neglect the individuals, misappropriate individuals’ funds or property, and deny personal rights. See, e.g., Ignored and Neglected: Personal Care Home Crisis in Mississippi, Disability Rights Miss., Jan. 14, 2010.

22 

individuals as they change over time, and that supports should be developed and expanded in the state that are necessary, desirable, and appropriate to support individuals and their families.
In conjunction with various private stakeholders, the State then developed and submitted the mandated Olmstead Plan, entitled “Mississippi Access to Care (“MAC”),” to the Mississippi legislature on September 30, 2001. The overall stated purpose of the plan was to “create an individualized service and support system that enables individuals with disabilities to live and work in the most integrated setting of their choice. It is our vision that all Mississippians with disabilities will have the services and supports necessary to live in the most appropriate and integrated setting possible.”
The State’s plan set forth a schedule for annual transition of individuals from institutions to the community, with a total of 1,035 persons to be transitioned by 2011. To accomplish this, the State’s plan called for increasing the capacity of community-based services and supports, especially increasing the availability of “safe, affordable, accessible housing options” in the community, more flexible community services and supports, community transportation, and specific system modifications, so as to transition individuals from institutions, thereby “facilitating the earliest possible re-entry into the community.” Specifically, the MAC plan identified the need to provide subsidized housing assistance to several hundred persons with disabilities and to expand the number of supervised apartments for persons with DD. The MAC also cited the need for other community services and supports, including day support, case management, mobile teams, and intensive in-home/residential treatment.
The State’s Olmstead Plan also relied heavily on the prospective State use of services and supports funded through the Medicaid IDD waiver to bring the State into compliance with the integration mandates of Olmstead. To increase the State’s ability to provide flexible community services to meet the individualized needs of persons with disabilities and to comply with the integration mandates set forth in Olmstead, the MAC plan identified the need to expand the number of individuals served by the State’s existing waivers and to expand the menu of services allowed under these waivers. The State’s MAC concluded: “Mississippi has a system of home and community-based waivers that currently serve individuals in community-based settings. However, there is a need for changes in the delivery of those services as well as expansion of the waivers.” The State’s Olmstead Plan called for expansion of the Elderly/Disabled waiver to include an additional 3,750 persons by 2007; the Independent Living waiver to include an additional 2,500 persons by 2007; the IDD waiver to include an additional 1,600 persons by 2011; the Assisted Living waiver to include an additional 500 persons by 2007; and the Traumatic Brain/Spinal Cord Injury waiver to include an additional 2,000 persons by 2007. The State did not meet any of these targets.
The Olmstead Plan called for expansions of services which the State has not implemented. For example, the MAC Plan calls for the State’s IDD waiver to now serve 3,300 persons with DD; instead, at the end of FY 2011, Mississippi served only 1,817 persons – almost 50 percent less than what the State identified as necessary to achieve integration mandates. The MAC also called for an expansion of community-based services to adults and children with mental health and emotional needs. It called for the State to apply for funding to serve 1,500

23 

children with serious emotional disturbances.19 It also planned for the expansion of services and service providers for therapeutic foster care to include an additional 900 children with serious emotional disturbances by 2011, and to increase the number of children and youth served in therapeutic group homes by 260 by 2006.
We understand that the State has never fully implemented its Olmstead Plan. Apparently, the legislature has failed to provide the necessary funding. In 2003, the first and last MAC implementation report acknowledged that “budget shortfalls prevented the State from funding full plan implementation.” The Mississippi PEER committee also concluded in its 2008 report that the State’s Olmstead Plan has not been implemented because it had never been funded. The Board of Mental Health also recently confirmed that “resources have not been made available to fund the MAC plan.”
Mississippi’s acknowledged failure to implement its own State Olmstead Plan for a decade is perhaps the most straightforward indication of the State’s failure to comply with the important integration mandates of the ADA.
2. Expansion of Existing Services is a Reasonable Modification
As envisioned by the MAC Plan, the State must expand its existing services to support individuals with mental illness and developmental disabilities in the community. Expanding these programs to serve others who are unnecessarily institutionalized or at risk of unnecessary institutionalization is a reasonable modification to the State’s system. Disability Advocates, Inc. v. Paterson, 598 F.Supp.2d 289, 335 (E.D.N.Y. 2009) (“Where individuals with disabilities seek to receive services in a more integrated setting-and the state already provides services to others with disabilities in that setting-assessing and moving the particular plaintiffs to that setting, in and of itself, is not a ‘fundamental alteration.’”).
In fact, the State’s leadership has repeatedly acknowledged that it can and should rebalance services to emphasize community support. In responding to the PEER committee report in 2008, the Chair agreed that the Board of Mental Health would develop and implement changes to “refocus the Department’s service/support delivery system from one that is predominantly institution-based to one that will rely more heavily on a community model … and to reinforce our determination to create a strong, expanded community-based system.” The Board asserted that it was “pleased that most of the recommendations in [the PEER] report are directly in concert with the vision of the Board of Mental Health and our Executive Director of a future moving away from additional institutional care to expanded community services.” The Board stated that it is “committed to improving and changing the direction of mental health services for Mississippi’s citizens.”
19 In the years since the publication of MAC, the State created a new program, MYPAC, which is a demonstration grant and waiver program for children with serious emotional disturbance, providing assessment services, case management, wraparound services, and respite. The state served 586 youth in FY 2011 – barely a third of the children and youth Mississippi proposed to serve in the MAC.

24
This stated commitment to community-based services continues. For example, on August 19, 2011, in the face of prospective cuts to community programs, DMH Executive Director LeGrand informed the State Division of Medicaid that DMH is committed to developing community-based service options that are “desperately needed for thousands of individuals and families that rely on the public mental health system as their only viable option for mental health treatment in Mississippi … eliminating or reducing many of the services that allow individuals to be served in the community, rather than a more restrictive environment, is in conflict with support of a community-based mental health system.” He reiterated that “the goal of DMH is to continually strive to develop new ways to adequately serve the citizens of Mississippi in the most integrated settings available.”
The current DMH Strategic Plan also recognizes the need to transform the current institution-heavy system to a community-based system:
 A primary goal is to work to transform the current State system to “a person-driven, community-based service system.”
 The stated purpose of the plan is to “drive the transformation of the system into one that is outcome and community-based.”
 The “core values” and “guiding principles” of the plan emphasize community services: “We believe that community-based service and support options should be available and easily accessible in the communities where people live.”
 DMH stresses that it is “committed to preventing or reducing the unnecessary use of inpatient or institutional services when individuals’ needs can be met with less intensive or least restrictive levels of care as close to their homes and communities as possible.”
 A “core competency” is to “shift in focus to a community-based service system.”
 The plan calls for the development of a “seamless community-based service delivery system” that emphasizes the development of “new and expanded services in the priority areas of crisis services, housing, supported employment, long term community supports and other specialized services.”20
The State’s failure to develop its promised services is a barrier to discharge and places people at risk of institutionalization. We uncovered many examples where teams at institutions did not recommend integrated placement for a person simply because appropriate residential or other programs did not exist in the community. Many families who need community support for an individual with DD expressed interest in the IDD waiver, but the State’s facility staff did not
20 Consistent with this, in its FY 2011 State Plan, DMH’s Bureau of Intellectual and Developmental Disabilities stressed: “Central to the comprehensive public mental health service system is the belief that individuals are most effectively treated in their community and close to their homes, personal resources, and natural support systems.”

25 

offer them the intensity and flexibility of services that the waiver program is intended to provide. State documents instead appear to discourage families from pursuing waiver services by describing them as limited. For example, the waiver information sheet that staff present to families at Hudspeth describes key services that the waiver is required to provide, including supported living, as “rarely available.” Given this, it is likely that some people enter or remain in institutional care simply because other alternatives are not available.
In meetings with individuals receiving services and their family members, we learned that the absence of residential, educational, employment, transportation, and therapeutic services in their home communities led them to seek institutional placements for their family members as a last resort. We learned that school-based services, described as “glorified babysitting,” failed to offer the appropriate array of special educational services required for children with disabilities. Options were particularly lacking for those individuals who need 24-hour supervision and for those in rural settings. Families did not seem aware of the supervised apartment settings that the State currently offers in small numbers, staffed 24 hours per day and with oversight through the regional centers, or had not been offered that option. One woman told us that she would love to see her brother in an apartment someday, but he requires supervision that she believed would be unavailable in an apartment setting. Even parents who need support only during the workday so that they can continue to support their families cannot find staff trained to offer that support, or get sufficient funding. We understand the difficult struggle that these families faced when deciding how to best support family members when community services are lacking. The ADA requires the State to offer families real, safe community alternatives.
3. Expansion of Services Can be Facilitated by Reallocation of Resources and Is Not a Fundamental Alteration
On average, the cost of care in the community would be less than care in institutional settings. Of course, the cost of care is not, in and of itself, dispositive when determining whether changes in services are a reasonable modification required by the ADA. See Fisher, 335 F.3d at 1183. (“If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.”); Frederick L. v. Dep’t of Pub. Welfare of Pa., 364 F.3d 487, 495 (3rd Cir.2004). A state is required to provide services in the most integrated setting appropriate unless it can demonstrate that doing so constitutes a fundamental alteration of its program. Olmstead, 527 U.S. at 605. It is clear that Mississippi could serve more individuals in more effective therapeutic settings if the State shifts resources to the community. Nonetheless, the State has taken insufficient steps to reallocate existing resources to better meet the needs of persons with disabilities in integrated community settings.
The cost of providing institutional care to persons with disabilities is nearly always more expensive than providing care in integrated community settings. The Mississippi PEER committee reached the same conclusion, reporting in 2008 that, generally, institution-based services cost more per client than community-based services and that the State’s focus on institution-based care “represents a much more expensive service delivery model than does community-based care.” The committee found that “[b]ecause of limited resources, [DMH] should reprioritize needs based on the best possible return on client care to utilize each dollar of

26 

funding most effectively … limited funding should serve as a strong indicator to continually tweak the system and to plan to maximize each available dollar.” In fact, it appears that a reallocation of Mississippi’s existing financial resources could have enabled more timely and complete implementation of the State’s Olmstead Plan (and/or the development and implementation of alternative community options).
The Mississippi PEER committee recommended that, if community-based programs were expanded, residents of institutions could then transition to community programs and resources could be freed for the development of additional community resources. The committee concluded that appropriate transitioning of people from institutions to the community “could provide the opportunity for closure of some institutions (or of some units within institutions) and thus free a portion of the department’s resources to be used for other mental health needs.”
As in much of the country, the economic climate in Mississippi has been challenging in recent years. We recognize that the State has been facing a recurring multi-billion dollar annual deficit. The State informs us that within approximately the last five years, the Mississippi legislature has cut DMH funding significantly – by millions of dollars – and that for a period, DMH had to assume the additional cost of funding various community programs from its established budget without the infusion of new funding to cover this unanticipated expense.
Other than closure of beds at two State hospitals, the State has largely kept intact its elaborate institutional service-delivery system. Given the need to spend precious resources wisely and efficiently, it is puzzling that the State has not done more to reallocate resources away from very costly institutional settings to much less expensive (and more effective and therapeutic) community settings.
4. Critical Services for Expansion
While the critical services that will support individuals with disabilities in the community are available in Mississippi, they are not currently available in sufficient quantity or in all parts of the State.
a. IDD Waiver Services for Individuals with DD
The IDD waiver provides a range of community-based supports to individuals with DD to live in the community and avoid institutionalization. The IDD waiver has been an effective alternative to institutionalization for many individuals with DD around the country and in the State. But Mississippi has not taken full advantage of the waiver. The State already has authorization to provide additional waivers. In FY 2011 the Centers for Medicare and Medicaid Services (“CMS”) authorized the State to have 2,600 slots in its waiver, but the State funded only 1,817 (down from 2,009 in FY 2008). The MAC called for the State’s IDD waiver to now serve 3,300 persons with DD. If Mississippi fully funded this waiver, it could serve hundreds more individuals with DD who are currently unnecessarily institutionalized or being placed at risk of unnecessary institutionalization while they languish on the waiver waitlist.

27
The current DMH Strategic Plan identifies the need to provide community supports for persons transitioning to the community through participation in the “Money Follows the Person” (“MFP”) project. This includes expanding funded waiver services to enable persons with DD to transition to the community, increasing the number served on the IDD waiver, and transferring persons from nursing homes to the community. MFP also enables the State to draw down an enhanced federal Medicaid contribution of over 80 percent.
b. Mental Health Services
Already, Mississippi makes available critical services to support people with mental illness, though not in sufficient quantity or with equal distribution. The CMHCs are all required to offer crisis services, psychosocial rehabilitation, case management, therapy, psychiatry, inpatient referral, support for family education, support for consumer education, prescreening for commitment, day treatment, functional assessment, and Making a Plan (“MAP”) teams. In addition, seven crisis interventions centers served 1,512 people in FY 2010, returning them home after a brief stabilization.
Some community mental health regions also offer mobile crisis services that respond to people wherever they are and have crisis hotlines where they can reach a provider any time of day or night. In January 2011, a Mississippi legislative subcommittee concluded that there was inadequate community capacity to meet the needs of persons with mental illness living in the community, and specifically, that an expansion of crisis services is necessary. Report of the Schweitzer Subcommittee on the CIT/Crisis Services System in Mississippi to the Joint Legislative Study Committee on Improving the Mental Health System in Mississippi and its Advisory Council, Jan. 10, 2011. The DMH Strategic Plan identifies a goal of developing a comprehensive crisis response system with crisis stabilization services to divert people from inpatient settings, reduce lengths of stay there, and reduce recidivism; 24/7 mobile crisis teams in every county; crisis support plans for persons at risk; and crisis and respite services for persons with developmental disabilities.
Beyond general case management, some counties provide intensive case management and two offer ACT teams to serve the highest need individuals in those areas. ACT is an intensive community-based mobile support service to help persons with mental illness succeed in the community and avoid crises and other adverse events, including needless and costly trips to hospital emergency rooms or admissions to psychiatric hospitals, unwanted involvement with law enforcement, and even incarceration. ACT and the equivalent services for children, often called wraparound services, are well-recognized, essential components of any mental health system. Yet the Schweitzer subcommittee also concluded that most regions lacked sufficient (or had no) ACT. In 2010, the MPA emphasized the need for more and better ACT teams, which they credit for alleviating psychiatric symptoms, as well as reducing homelessness and inpatient psychiatric rehabilitation.

28 

Housing resources also vary by region, with some regions offering supported housing, HUD 811 housing,21 and group homes. The current DMH Strategic Plan sets forth particular objectives to expand community capacity within the next five years. One of the key objectives in the plan is to “increase statewide availability of safe, affordable, and flexible housing options, and other community supports.” This includes creating linkages with multiple housing partners, identifying services and funding to sustain permanent supported housing, and providing bridge funding for supported housing.
Children’s services differ depending on the region, but typically also include Making a Plan multi-system teams serving children at risk of institutionalization, therapy, school-based outpatient services, and day treatment. The MYPAC program offers alternate services to traditional PRTFs for youth still needing the same level of care. Among the MYPAC services are assessment services, case management, wraparound services, and respite. In addition, some regions provide transitional outreach services, offering support services needed by youth 16 to 21 years of age.
In August 2011, the Mississippi Division of Medicaid (“DOM”) proposed a number of changes to its Medicaid plan, and it filed proposed regulations to accompany a Medicaid State Plan Amendment in November. The State has not yet submitted the Plan Amendment itself. Among the services that the DOM proposed were a number of supports aimed to help people with significant mental health needs remain in the community. The regulations incorporate crisis services, flexible team supports for adults through ACT, peer support, wraparound facilitation, intensive outpatient psychiatric services, treatment foster care, and community respite. These services already exist in parts of the State, but not every CMHC offers each service, in large part because Medicaid does not cover them in the State’s current plan. As the State has decided to incorporate them into the State Plan, expanding these critical services will require only a reasonable modification of the service system.
F. The State Fails to Provide Children with Disabilities with Medically Necessary and Educational Services, in Violation of Federal Law, Which Further Exposes Children to Unnecessary Institutionalization
Hundreds of those who are unnecessarily institutionalized in Mississippi in violation of the ADA are children with disabilities.22 The harm that these children experience when they are removed from their homes and placed in segregated settings is sometimes the result of failure to
21 The U.S. Department of Housing and Urban Development (“HUD”) funds a program intended to create affordable housing for people with disabilities called Section 811 housing. The program provides funding to nonprofit organizations to develop rental housing with the availability of supportive services for very low-income adults with disabilities, and provides rent subsidies for the projects to help make them affordable.
22 Children with disabilities in Mississippi are institutionalized in large facilities, though the State recognizes the effectiveness of supporting children in their homes, as required by the ADA. The State currently serves 169 children 21 years and under in institutions for people with developmental disabilities and 123 children in psychiatric facilities.

29 

provide services under EPSDT or the IDEA. Under the Medicaid Act, Mississippi is required to provide children with disabilities with certain minimum mandatory services, including EPSDT services. See 42 U.S.C. § 1396 et seq. EPSDT services provide eligible children with a range of supports and services that can be critical to serving children successfully in their homes and communities.23 Additionally, under the IDEA, the State is required to identify, locate, and evaluate all children with disabilities, so that qualifying children can receive supports and services in their local schools that, likewise, can play a critical role in serving children in the community. 20 U.S.C. § 1412(a)(3) (“child find”). Our investigation pursuant to CRIPA found that, in addition to violating the ADA, Mississippi fails to comply with the Medicaid Act’s EPSDT mandate and the IDEA’s “child find” requirement and, as a result, children with disabilities in Mississippi are further exposed to needless and harmful institutionalization.
Children are particularly vulnerable to the deleterious effects of unnecessary institutionalization. They learn through modeling and imitation and, as a result, need positive role models who mentor, teach skills, and encourage appropriate social interaction with others. Children in institutional settings are deprived of these normalizing experiences and, instead, are surrounded by other children with disabilities, and isolated from family, friends, and children without disabilities. Mississippi’s failure to provide EPSDT services, and to identify, locate, and evaluate children for eligibility to receive IDEA services is a substantial cause of the inappropriate institutionalization of children in Mississippi.
1. The State Fails to Provide Medically Necessary Services to Children with Disabilities in Violation of the Medicaid Act’s EPSDT Mandate.
State participation in Medicaid is voluntary, but once a state elects to participate, it is required to provide certain minimum mandatory services, including EPSDT services. See 42 U.S.C. § 1396 et seq.; Frew v. Hawkins, 540 U.S. 431, 433 (2004). Under the EPSDT provisions of the Medicaid Act, participating states must provide coverage to Medicaid-eligible individuals under the age of 21 for all medically necessary treatment services described in the Medicaid Act at 42 U.S.C. § 1396d(a), which sets out the scope of the traditional Medicaid benefits package. 42 U.S.C. § 1396a(a)(43); 42 U.S.C. 1396d(a)(4); 42 U.S.C. § 1396d(r)(1)-(5). Such treatment services must be covered for Medicaid-eligible children even if the State has not otherwise elected to provide such coverage for other populations. 42 U.S.C. § 1396d(r)(5); see also S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 590 (5th Cir. 2004) (states must “cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a).”). Thus, a service must be covered by the EPSDT program if it can properly be described as one of the services listed in the Medicaid Act, 42 U.S.C. §1396d(a). See, e.g., Dickson, 391 F.3d at 594-97 (finding that incontinence supplies were within the scope of home health services described in § 1396d(a) and that the state violated EPSDT provisions by denying Medicaid-eligible child such services); Parents League for Eff. Autism Serv. v. JonesKelley, 339 Fed. Appx. 542 (6th Cir. 2009) (affirming preliminary injunction enjoining state from restricting rehabilitative services for Medicaid-eligible children with autism).
23 The Department of Justice previously expressed the concern that children in Mississippi are unnecessarily institutionalized in PRTFs due to insufficient EPSDT services. See Statement of Interest of the United States of America at 1, Troupe v. Barbour, No. 3:10-153 (S.D. Miss. Apr. 8, 2011).

30 

The scope of the treatment required to be provided under EPSDT includes dental, hearing and vision services, and “[s]uch other necessary health care diagnostic services, treatment, and other measures described in [42 U.S.C. § 1396d(a)] . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are [otherwise] covered under the state plan . . . .” 42 U.S.C. § 1396(r)(1)-(5); see also 42 C.F.R. § 440.130. This includes medically necessary services such as comprehensive assessments, intensive case management services, mobile crisis services, in-home therapy, behavioral support services, family education and training, and therapeutic foster care. See, e.g., Rosie D. v. Patrick, 410 F. Supp. 2d 18, 52-53 (state violated EPSDT provisions by failing to provide to children with serious emotional disorders adequate and effective mobile crisis services, comprehensive assessments, ongoing case management and monitoring, and in-home behavioral support services); see also Katie A. v. L.A. County, 481 F.3d 1150, 1160 (9th Cir. 2007) (holding that states have an obligation under the EPSDT mandate to provide effective inhome behavioral support services to children with mental illness).
Many Medicaid-eligible children enter psychiatric facilities in Mississippi because they are not receiving medically necessary services that the State is required to provide. Children in Mississippi who have mental health, emotional and behavioral needs typically require services such as intensive case management, mobile crisis services, behavioral support, and family education services to avoid unnecessary institutionalization. Mississippi fails to provide these medically necessary treatment services prior to their institutionalization, and instead, these children cycle through local hospitals, State hospitals, and PRTFs, including the Specialized Treatment Facility (“STF”). Removing children from family, friends, and school is an ineffective mode of treatment because it is difficult for children to transfer the skills that they learn back to the home environment, where they will have to employ them. Worse, youth in congregate settings often learn new negative behaviors from one another, rather than learning skills to help them manage behavior and mental illness. As a result, these children tend to cycle through residential settings. Of the 570 children treated in State psychiatric facilities in FY 2010, at least 5 percent were discharged and then readmitted to a State psychiatric facility through a second involuntary admission that same year. Others were almost certainly readmitted to local hospitals, private PRTFs, or juvenile justice facilities. This indicates that children are not receiving sufficient support in their natural communities.
Staff at STF acknowledged that a large number of the children they serve could succeed in their own homes and communities if they received the supports offered to a limited number of children through the MYPAC program.24 The State itself has found that MYPAC is equally or more effective than institutional placement.25 Despite this recognition, the State does not divert
24 The MYPAC waiver program serves a limited number of children. In its first year the program had a maximum capacity of 120 children and in the final year the cap is set at 600 youth.
25 The State found that, “The data indicates the program is as good or better than the traditional system of institutionalization of the seriously emotionally disturbed children and youth in the state of Mississippi. Thus far, the MYPAC program’s analyses infer the program is a better plan to treat their participants than the traditional system.” MYPAC Second Evaluation Report at 22

31 

all children from segregated congregate placements and offer them effective home-based supports required by EPSDT. CMHCs that typically serve children are not currently authorized to provide the flexible supports in the MYPAC program, so they are not generally offered prior to a referral for residential placement. The State has an obligation to identify the need for services and provide treatment that will ameliorate children’s disabilities and cannot wait to offer flexible support until after someone has received the most segregated treatment.
Similarly, the State has failed to provide children with DD in the regional centers and the Mississippi Adolescent Center with the intensive community services required by EPSDT before their institutionalization. Medicaid services such as behavioral support, intensive case management, crisis services, medical care, and personal care enable children with DD and behavioral or medical challenges to remain in their homes and communities. A number of individual support plans listed families’ needs for basic supports, or frustration with available services as the reason for placement, but do not indicate that treatment teams explored what services might be available to support children through EPSDT. Rather, families appear to have been offered two options: inadequate basic services under the State’s Medicaid Plan or institutional care.
Our consultants found that children in Mississippi’s institutional settings could be served in the community if flexible, intensive home-based supports were available, and that children with similar needs are currently served through the MYPAC program. However, the Division of Medicaid and the DMH staff do not provide the supports mandated under EPSDT to help families prevent unnecessary institutionalization. In fact, few providers are aware that EPSDT services are not limited to those services that already exist in the State Plan.
2. The State Fails to Comply with the IDEA’s “Child Find” and “Least Restrictive Environment” Requirements.
Mississippi school districts must identify, locate, and evaluate all children with disabilities and then serve those children alongside their non-disabled peers to the greatest extent appropriate. 20 U.S.C. § 1412(a)(3). See also Forest Grove School Dist. v. T.A., 129 S.Ct. 2484, 2495 (2009) (describing states’ obligations to identify children with disabilities and evaluate them for special education services). Typically, children are identified by their school district, or local education authority (“LEA”). LEA’s are then required to provide eligible children with a range of services that can be critical to supporting a child in the community successfully, including positive behavioral support, family education, counseling, speech, language, physical therapies, and assistive technologies. 20 U.S.C. § 1414(d)(1)(A)(IV); 34 C.F.R. § 300.34. A child is eligible for special education services when the child has a disability, including mental retardation or serious emotional disturbance, and “by reason thereof [the child] needs special education and related services.” 20 U.S.C. § 1401(3)(A).
The education records of institutionalized children with disabilities in Mississippi reveal that the State fails to adequately identify, locate, and evaluate all children with disabilities. 20
(March 22, 2011, prepared by University of Southern Mississippi’s School of Social Work Research Team for Mississippi Division of Medicaid).

32 

U.S.C. § 1412(a)(3). The State identified only 49 of the 123 children who were institutionalized as a result of emotional disturbance as of June 2011 as children qualifying for special education services. Yet our expert found that virtually all children in State psychiatric facilities have disabilities that would adversely impact their ability to learn and, therefore, should be identified as qualifying for special education services. Mississippi’s failure to identify children with disabilities as eligible for special education services deprives children of services to which they are entitled under the IDEA – services that can be critical to facilitating successful transitions from State institutions back to local schools, as well as to preventing the unnecessary institutionalization of children in the first place.
Under the IDEA, Mississippi also has an obligation to educate children with disabilities, many of whom were accustomed to integrated schools, alongside their non-disabled peers. 20 U.S.C. § 1412(a)(5)(A). However, Mississippi provides educational services for nearly all of the children in its facilities in highly restrictive settings. In fact, none of the children in the State’s psychiatric facilities attend local schools and only 6 percent of the children in facilities serving people with developmental disabilities attend school off-campus. Our expert found no clear criteria for identifying which children would be educated in local schools and no system for evaluating that possibility. However, most of these children did attend public schools with nondisabled peers before they entered a facility, and our experts found that children in State facilities could be educated in less restrictive environments in integrated schools.
V. RECOMMENDED REMEDIAL MEASURES
To remedy its failure to serve individuals with disabilities, including mental illness and/or developmental disabilities, in the most integrated setting appropriate to their needs, consistent with the mandate of Title II of the ADA and its implementing regulations, the State should promptly implement the minimum remedial measures set forth below:
 Mississippi should reduce its reliance on public and private institutional care, reallocating funds to community based services. The State should make every effort to divert new admissions from State facilities by offering comprehensive supports in the community.
 The State should assess each individual in its institutional settings, based on the principle that, with proper supports and services, all individuals can be served in an integrated community setting. All assessments should include an individualized analysis of the services and supports necessary to ensure successful transition to the community. Assessments for individuals who have histories of multiple institutional admissions should consider and address factors that have led to readmissions. The State also must revise its policies and retrain staff to recognize that individuals need not learn certain skills to be “eligible” for community placement, but rather, individuals best learn independent living skills in real world settings.
 The State should expand the number of waivers slots in order to transition individuals with DD from institutional settings and prevent the admission of

33
individuals on the waitlist at risk of institutionalization. The State also should ensure that IDD waiver services are sufficient to support individuals, including children and those with complex needs, in integrated community settings.
 The State should ensure that all CHMCs offer intensive community services across the State, including ACT, crisis services, case management, peer support, supportive housing, supported employment, and transportation services to enable individuals with serious mental illness to remain successfully in the community. As many of these services are not now available in every region, it is critical that significant training accompany the service expansion to ensure that providers have competence in offering these services.
 The State should provide adequate medically necessary treatment services to children under EPSDT and ensure that all children with disabilities are identified for special education services under the IDEA. Services that children receive through EPSDT and through their local schools are often the critical supports that enable them to remain with family in their communities.
 The State should provide families with alternatives to institutionalization and give them information they need to make informed choices.
 The State should institute a quality assurance system to ensure the safety of those individuals who are in the community, or return to the community with supports. Professionals should regularly review and assess the safety, treatment, and services provided by the State and by community providers. After each review, the State should require that providers implement plans for correcting any deficiencies identified by the process.
VI. CONCLUSION
This letter is a public document, which will be posted on the Department of Justice’s website. We hope that you will give this letter careful consideration and that it will assist in facilitating the development and implementation of remedial measures to address outstanding issues of concern. Although we have already had some preliminary discussions about needed remedial steps, we now hope to engage the State in a more in-depth dialogue about remedies in the context of structured negotiations. Ultimately, we hope to be able to reach agreement with the State on a written, enforceable, settlement agreement that would set forth the remedial actions to be taken within a specified period of time to address each outstanding area. Such a disciplined remedial structure would provide all interested parties with the greatest assurance that discrimination will not continue or recur.
We are obligated to inform you that if the State declines to enter into voluntary compliance negotiations or if our negotiations are unsuccessful, the United States may then need to take appropriate action, including initiating a lawsuit, to obtain redress for outstanding concerns associated with the State’s compliance with the ADA. We would prefer, however, to resolve this matter by working cooperatively with the State. As referenced above, we are

-34-
encouraged by our positive interactions thus far with State leadership, and hope there is a desire to work with the United States toward an amicable resolution.
Thank you again for your ongoing cooperation in this matter. We will contact you soon to discuss the issues referenced in this letter and to set a date and time to meet in person to discuss a remedial framework in which to address any outstanding individual and systemic concerns. If you have any questions, please feel free to contact Jonathan M. Smith, Chief of the Civil Rights Division's Special Litigation Section, at (202) 514-5393, or Deena Fox, the lead attorney assigned to this matter, at deena.fox@usdoj.gov, and/or (202) 305-1361.
Sincerely,

cc: Jim Hood, Esq. Attorney General Office of the Attorney General Walter Sillers Building, Suite 1200 550 High Street Jackson, MS 39201
Cynthia T. Eubank, Esq. Special Assistant Attorney General Department of Mental Health 1101 Robert E. Lee Building 239 N. Lamar Street Jackson, MS 39201
Mr. Edwin C. LeGrand, III Executive Director Department of Mental Health 1101 Robert E. Lee Building 239 N. Lamar Street Jackson,MS 39201
Gene Rowzee, Esq. Senior Attorney Department of Mental Health 1101 Robert E. Lee Building 239 N. Lamar Street Jackson, MS 39201

Thomas E. Perez Assistant Attorney General

35 

Dr. Robert L. Robinson Executive Director Mississippi Division of Medicaid 550 High St., Suite 1000 Jackson MS 39201
T. Richard Roberson Jr., Esq. Special Assistant to the Executive Director Mississippi Division of Medicaid 550 High St., Suite 1000 Jackson MS 39201
Ms. Debbie Ferguson Director Central Mississippi Residential Center 701 Northside Drive Newton, MS 39345
Mr. Charles Carlisle Director East Mississippi State Hospital 4555 Highland Park Drive Meridian, MS 39307
Mr. James G. Chastain Director Mississippi State Hospital PO Box 157-A Whitfield, MS 39193
Dr. Paul A. Callens Director North Mississippi State Hospital 1937 Briar Ridge Road Tupelo, MS 38804
Mr. Clint Ashley Director South Mississippi State Hospital 823 Highway 589 Purvis, MS 39475

36
Mr. Raymond Johnson Director Boswell Regional Center 1049 Simpson Highway 149 Magee, MS 39111
Ms. Renee Brett Director Ellisville State School 1101 Highway 11 South Ellisville, MS 39437
Mr. Michael Harris Director Hudspeth Regional Center Highway 475 South PO Box 127-B Whitfield, MS 39193-1032
Ms. Edie Hayles Director North Mississippi Regional Center 967 Regional Center Drive Oxford, MS 38655
Ms. Dorothy McEwen Director South Mississippi Regional Center 1170 West Railroad Street Long Beach, MS 39560-4199
Ms. Shirley Miller Director Mississippi Adolescent Center 760 Brookman Drive Ext. Brookhaven, MS 39601
Ms. Stacy Miller Director Specialized Treatment Facility 14426 James Bond Road Gulfport, MS 39503

37
Felicia C. Adams, Esq. United States Attorney Northern District of Mississippi 900 Jefferson Avenue Oxford, MS 38655-3608
John Dowdy, Esq. United States Attorney Southern District of Mississippi 501 East Court Street, Suite 4.430 Jackson, MS 39201

 
 Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

UNITED STATES OF AMERICA

PLAINTIFF

V.

CAUSE NO. 3:16-CV-622-CWR-FKB

THE STATE OF MISSISSIPPI

DEFENDANT

ORDER DENYING SUMMARY JUDGMENT

In 2016, the United States filed this lawsuit alleging that the State “unnecessarily requires

thousands of adults with mental illness to receive services in State-run psychiatric hospitals”

instead of community-based services, in violation of Title II of the Americans with Disabilities

Act (“ADA”). Docket No. 153 at 1.

In December 2018, the State of Mississippi filed two motions for summary judgment, one

alleging that the United States lacks standing to bring such a suit, and one alleging that it has not

properly articulated a necessary element of the claim. Both motions are denied for the reasons

below.

I. Background

In 1990, Congress passed the ADA “to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §

12101(b)(1). Congress instructed the Attorney General to issue regulations on the implementation

of the ADA. Those regulations require that the government “administer services, programs, and

activities in the most integrated setting appropriate to the needs of qualified individuals with

disabilities.” 28 C.F.R. § 35.130(d).

In 1999, the Supreme Court upheld the Attorney General’s regulations and held that “under

Title II of the ADA, States are required to provide community-based treatment for persons with

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 2 of 9
mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607 (1999). Olmstead continues to serve as the seminal case on this matter.
Against this backdrop, the Department of Justice (“DOJ”) has investigated, litigated, and worked with states around the country to ensure that their systems for mental health treatment uphold the purpose of the ADA, as articulated in Olmstead. In 2011 DOJ issued a findings letter regarding what it deemed to be the State’s over-institutionalization of adults with mental illness and the lack of alternative community-based services. Then, the United States filed this lawsuit in August of 2016.
In the complaint, the United States alleges that Mississippi over-relies on four state psychiatric hospitals that are “segregated, institutional settings that do no enable individuals living there to interact with non-disable persons to the fullest extent possible.” Docket No. 1 at 9. There are thousands of Mississippians who cycle in and out of the state hospitals each year, and many return for repeated, lengthy stays. According to the United States, on a randomly chosen day in 2014, 55% of the 206 patients housed on the short-term care unit at the Mississippi State Hospital had previously been admitted to the hospital two or more times. See Id. at 11. In a similar sampling of the long-term care unit, where the average length of stay is seven years, there was a man who had been housed at the State Hospital for over fifty years. See Id. at 12.
The complaint also alleges that the over-institutionalization is compounded by a lack of appropriate discharge plans for individuals and the overall structure of the state mental health system. The United States ultimately claims that “Mississippi is aware that it unnecessarily relies
2

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 3 of 9
on institutional settings and has not taken the action needed to remedy the violations of law[.]” Docket No. 1 at 21.
During this litigation, the State has denied these allegations and asserted the “fundamental alteration defense” under Olmstead. See Docket No. 3. In December, the State filed two motions for summary judgment challenging the United States’ standing and ability to prove a key element of its claim, as well as a Daubert motion challenging the reliability of its expert reports.
Since the filing of the complaint, the parties completed discovery, where depositions were taken, and expert reports were produced. Both sides have invested significant time in litigating this case. A bench trial is set to begin on June 1, 2019.
II. Legal Standard Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Once a summary judgment motion is made and properly supported, the nonmovant must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial. Neither conclusory allegations nor unsubstantiated assertions will satisfy the nonmovant’s burden.” Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (quotation marks and citations omitted). The Court views the “evidence and draw[s] reasonable inferences in the light most favorable to the non-movant.” Maddox v. Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011). “Even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that ‘the better course would be to proceed to a full trial.’” Harris v. Bruister, No. 4:10-CV-77-DPJ-FKB, 2013 WL 6805155, at *2 (S.D. Miss. Dec. 20, 2013) (quoting Firman v. Life Ins. Co., of N. Am. 684 F.3d 533, 538 (5th Cir. 2012)).
3

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 4 of 9
The Court will address each motion for summary judgment in turn.
III. Discussion
a. Standing
The State argues that the United States does not have standing to bring a suit under Title II
of the ADA because Title II lacks explicit reference to federal enforcement actions. To support its
position, the State relies heavily on a Florida district court case, C.V. v. Dudek, 209 F. Supp. 3d
1279 (S.D. Fla. 2016), which held that the United States did not have standing to bring a suit under
Title II of the ADA. That case is currently on appeal to the Eleventh Circuit. If summary judgment
is not granted in the State’s favor, it argues this case should be stayed pending the appellate court’s
decision.
This Court is not bound by the holding of any district court or appellate court, other than
the Fifth Circuit and the Supreme Court. In a case brought by the United States under Title II of
the ADA, the defendants presented Judge Bennett in the Southern District of Texas with an
identical argument. This Court finds his analysis persuasive:
[Defendant] alleges that the United States does not have standing to bring a claim under Title II of the ADA, and the case should therefore be dismissed. [Defendant] cites for authority a single opinion out of the Southern District of Florida—C.V. v. Dudek, 2016 WL 5220059 (S.D. Fl. Sept. 20, 2016). However, the plain language of the ADA, its legislative history, and the implementing regulations clearly establish that the United States has authority to bring lawsuits under Title II of the ADA. This is reflected by every court (except C.V. v. Dudek) to address the question.
United States v. Harris Cty., No. 4:16-CV-2331, 2017 WL 7692396, at *1 (S.D. Tex. Apr. 26, 2017) (collecting cases on Title II standing).1 This Court finds that Judge Bennett’s decision, based
1 Judge Bennett relied on the following cases to support his position: United States v. City & Cnty. of Denver, 927 F. Supp. 1396 (D. Colo. 1996); Smith v. City of Phila., 345 F. Supp. 2d 482 (E.D. Pa. 2004); United States v. City of Baltimore, 845 F. Supp. 2d 640 (D. Md. 2012); Disability Advocates, Inc. v. Paterson, No. 03-cv-3209, 2009 WL 4506301 (E.D.N.Y. Nov. 23, 2009); United States v. Va., No. 12-cv-59, 2012 WL 13034148 (E.D. Va. June 5, 2012); United States v. N. Ill. Special Recreation Ass’n, No. 12-cv-7613, 2013 WL 1499034 (N.D. Ill. Apr. 11, 2013).
4

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 5 of 9
on the cumulative weight of cases, is far more compelling than one Florida district court case which reached a contrary conclusion. Dudek is an outlier. The United States has standing to bring this claim.
Additionally, what the State fails to mention about Dudek is the court’s acknowledgement that despite its lack of standing under Title II, the United States had another avenue to pursue its claims—the Civil Rights of Institutionalized Persons Act of 1980 (“CRIPA”).2 Dudek, 209 F. Supp. 3d at 1289–90. The Dudek court held that “the Department [of Justice]’s concern that it will not be able to commence litigation [under Title II of the ADA] is at most a half-truth” because it may use CRIPA as a “vehicle” to assert Title II violations. Id. DOJ, however, had failed to allege such a claim in its complaint.
As the United States points out, the complaint in this case asserts its claims through CRIPA. See Docket No. 1 at 4 (“The United States is authorized to initiate this action pursuant to the Civil Rights of Institutionalized Persons Act of 1980 (“CRIPA”)). The State dedicates a single paragraph in its rebuttal to the United States’ position regarding CRIPA. After stating the CRIPA standard, the State summarily asserts that “the claims brought under CRIPA would not be the same [as the claims under Title II of the ADA] and not staying this case pending the outcome of the Eleventh Circuit’s decision [in Dudek] would result in significant harm to the State.” Docket No. 165 at 8.
2 CRIPA provides: Whenever the Attorney General has reasonable cause to believe that any State or political subdivision of a State, official, employee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action . . . .
42 U.S.C. § 1997(a).
5

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 6 of 9
The State fails to explain how the CRIPA claims would differ from the ADA claims. Therefore, the United States has additional support for its standing to bring this claim.
b. Reasonable Modifications In its next motion for summary judgment, the State contends that “Plaintiff has not identified the reasonable modifications Mississippi must allegedly make to its mental health system, or the quantity (or ‘amount and availability’) of community-based services Mississippi should allegedly add to its system, or the cost of the modifications Plaintiff is seeking.” Docket No. 146 at 4. The United States responds that “[t]o satisfy the reasonable modification element, the United States need only suggest the existence of a plausible accommodation,” which it has done. Docket No. 153 at 2 (citing Frederick L. v. Dep’t. of Pub. Welfare, 364 F.3d 487, 492 n. 4 (3d Cir. 2004); Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003)). The United States adds that the State is trying to make a “fundamental alteration” defense—but in so doing is attempting to shift the burden from itself to the United States. The burden of showing reasonable accommodations is not a “heavy one.” Henrietta D., 331 F.3d at 280 (citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)). “It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits,” and “once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant.” Id. (quotation marks omitted). The United States has met that burden. It has proffered the plausible accommodations of expanding individual, family, and group therapy; intensive case management (provided through the Community Support Services); crisis services; peer support services; Assertive Community
6

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 7 of 9
Treatment (what is already known as PACT); supported employment; and permanent housing. These are largely services already provided by the State, but in limited regions. See Docket No. 153 at 12.
It is not the United States’ responsibility to provide a detailed financial summary of the cost of such accommodations. The United States has met its prima facie burden of showing that “facially” the cost of community-based care does not “clearly exceed its benefits[,]” Henrietta D., 331 F.3d at 280 (citation omitted), because it has presented evidence of the lower cost of community-based care versus institutionalization, and it has pointed to the large body of research that demonstrates the benefits of such care. See Docket No. 153 at 13–16.
If the State believes “that the requested relief would require an unduly burdensome or fundamental alteration of state policy in light of its economic resources,” it is free to argue that at trial as its affirmative defense. Frederick L., 364 F.3d at 492 n. 4.
IV. Status of the Case With both motions denied, the Court is preparing for a six-week long bench trial of this case. No other matters, criminal or civil, will be heard during that time, barring an emergency. Significant resources from the parties and from the Court will be expended. That, of course, is the Court’s job for citizens who seek justice. Ahead of trial, the Court wants to be sure that justice for Mississippians is the priority of this litigation. The attorneys representing the State have argued that the United States does not have standing to bring this case and that it has failed to articulate what reasonable accommodations the State should make. Notwithstanding these procedural arguments, the parties seem to agree on one thing: more community-based services would be good for Mississippians.3
3 While challenging a plaintiff’s standing is a legitimate procedural defense that the Court encourages parties to raise whenever relevant, though preferably at the earliest moment possible, the timing of the motion for summary judgment
7

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 8 of 9

The Department of Mental Health’s own publications and strategic plans support DOJ’s goals for more community-based care.4 In its own words, the Department of Mental Health “will continue [its] efforts and look forward to a better tomorrow when . . . partnerships improve and support holistic service delivery in the community.”5 The Attorney General also agrees with this sentiment; he has repeatedly admitted in the press that “community services need to be out-patient where somebody goes by and makes sure [mentally ill adults are] taking their medication. It’s a lot cheaper to put [mentally ill adults] in their home and apartment than it is to put them in an institution.”6 Outside of this litigation, therefore, the State’s public position is that moving towards more community-based services is necessary for the betterment of the State.
Yet, within the confines of this litigation, the State has taken a different position. Indeed, this is a fight over the central claim that Mississippi must provide more community-based mental health services. The contradiction between the State’s public position and its position in this litigation makes it difficult for the Court to imagine what a “win” looks like for the State. In broad terms, the Court assumes that a “win” for the United States is ensuring that Mississippians’ access

on standing is suspect. DOJ first issued a findings letter regarding the State’s over-reliance on institutionalization in 2011. For the next five years, the parties presumably attempted to reach a compromise. DOJ’s position has not changed since then. After the suit was filed, attorneys for the State participated in costly discovery that included motions practice, expert reports, and numerous depositions. Only after the close of discovery did attorneys for the State raise the standing argument. The taxpayers have borne these substantial costs.

4 “The expansion of community-based services is driven by DMH’s Strategic Plan. Since FY10, DMH has utilized a

goal-based strategic plan to transform the public mental health system in Mississippi. The FY19 – FY21 DMH

Strategic Plan includes three goals: To increase access to community-based care and supports through a network of

service providers that are committed to a person-centered and recovery-oriented system of care; To increase access to

community-based care and supports for people with intellectual and/or developmental disabilities through a network

of service providers that are committed to a person-centered system of care; and To ensure people receive quality

services in safe settings and utilize information/data management to enhance decision making and service delivery.”

Mississippi Department of Mental Health, Progress Update on Mississippi’s Public Mental Health System 3 (Sept.

2018),

http://www.dmh.ms.gov/wp-content/uploads/2018/09/Progress-Update-on-Mississippis-Public-Mental-

Health-System-9.1.18.pdf.

5 Id. at 19.

6 Arielle Dreher, AG Hood: State Must Fund Mental Health Care, Not Ignore Lawsuit, Jackson Free Press (Jan. 13, 2017), http://www.jacksonfreepress.com/news/2017/jan/13/ag-hood-state-must-fund-mental-health-care-not-ign/.

8

Case 3:16-cv-00622-CWR-FKB Document 204 Filed 05/13/19 Page 9 of 9
to mental health care is robust, readily-available, and built on the well-supported best practice of community-based care. Based on the Department of Mental Health’s publications, it seems this would also be a “win” for the State. The State, however, apparently believes that it can only get this “win” by having a trial and incurring huge costs in attorney’s fees and expenses and passing those costs on to the taxpayers. This is puzzling.
The Court acknowledges that it has not been presented with all of the arguments and it anticipates hearing more from the State regarding its “fundamental alteration defense.” This final commentary is not a ruling limiting the presentation of the parties in anyway. The parties will have the opportunity to present their cases in full. The Court hopes, however, the parties will take a thoughtful and deliberate approach to managing their time, and the Court’s time, by presenting arguments that prioritize justice for Mississippians and the resolution of this case.
V. Conclusion Both summary judgment motions are denied. SO ORDERED, this the 13th day of May, 2019.
s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE
9

 
 Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 1 of 61

____________________

No. 3:16‐CV‐622‐CWR‐FKB

UNITED STATES OF AMERICA, v.
STATE OF MISSISSIPPI, ____________________

Plaintiff, Defendant.

MEMORANDUM OPINION AND ORDER ____________________

Before CARLTON W. REEVES, District Judge.
Melody Worsham has a unique perspective on Mississippi’s mental health system. She knows the system as a patient be‐ cause she has struggled with serious mental illness (SMI) throughout her life. But she also knows it as a professional, in her job as a certified peer support specialist. That means Ms. Worsham is trained to help other persons with SMI “over‐ come the obstacles that might be getting in their way of living the life they want to live. And also navigating the system,

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 2 of 61
helping to find resources, and then just being moral support, you know, just being there for somebody.” Trial Tr. 323. Ms. Worsham was one of dozens of witnesses who testified in this case about whether Mississippi unnecessarily institution‐ alizes persons with SMI. The trial record spans four weeks of testimony, thousands of pages of exhibits, and voluminous le‐ gal briefs by both sides, and still does not begin to reflect the enormity of Mississippi’s mental health system. One would be forgiven for throwing their hands up in exasperation at the complexity of the situation. Yet we reached a moment of lucidity when Ms. Worsham was cross‐examined by one of the State’s attorneys. Ms. Worsham readily testified that the State was acting in good faith. “I think the people that I have worked with at the Department of Mental Health really want to see this change. I really do.” Trial Tr. 344. But Ms. Worsham could not agree that the State was making a “major effort” to expand community‐based ser‐ vices throughout Mississippi:
It’s like they stop right at that point to do the very thing that actually would make a differ‐ ence. They stop. So there is a lot of talk, there is a lot of planning, but there is also a lot of people being hurt in the process. Trial Tr. 348. The Court fully agrees with Ms. Worsham. On paper, Missis‐ sippi has a mental health system with an array of appropriate community‐based services. In practice, however, the mental health system is hospital‐centered and has major gaps in its community care. The result is a system that excludes adults with SMI from full integration into the communities in which
2

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 3 of 61
they live and work, in violation of the Americans with Disa‐ bilities Act (ADA). At its heart, this case is about how Mississippi can best help the thousands of Melody Worshams who call our State home. The State generally understands the urgency of these needs, and it understands its obligations under federal law. It is moving toward fulfilling those obligations. The main ques‐ tion at trial was, has it moved fast enough to find itself in com‐ pliance with the ADA? The United States Department of Justice has presented com‐ pelling evidence that the answer to that question is “no.” Mis‐ sissippi’s current mental health system—the system in effect, not the system Mississippi might create by 2029—falls short of the requirements established by law. The below discussion explains why.
I. The Americans with Disabilities Act In 1990, Congress passed the ADA, “the last major civil rights bill to be signed into law,”1 to “provide a clear and compre‐ hensive national mandate for the elimination of discrimina‐ tion against individuals with disabilities.” 42 U.S.C. § 12101
1 David M. Perry, How George H.W. Bush Proved Himself to the Disability Right Community, Pacific Standard (Dec. 6, 2018). The ADA is regarded as one of President George H.W. Bush’s greatest legislative achievements. See, e.g., Rachel Withers, George H.W. Bush was a Champion for People with Disabilities, Vox.com (Dec. 2, 2018) (quoting Lex Frieden, a professor at the University of Texas Health Science Center at Houston, as saying that Pres‐ ident H.W. Bush “considered [the ADA] among some of his greatest ac‐ complishments. From time to time, he told me he felt like it was the best thing that he did.”).
3

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 4 of 61
(b)(1).2 Congress explained in the statute exactly what it wanted to rectify. Some of those explanations have direct bearing on our situation nearly 30 years later. Congress found that “historically, society has tended to iso‐ late and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against in‐ dividuals with disabilities continue to be a serious and perva‐ sive social problem.” Id. § 12101(a)(2). It specifically acknowl‐ edged that such discrimination “persists in such critical areas as . . . institutionalization” and “health services.” Id. § 12101 (a)(3). Congress then wrote that “individuals with disabilities continually encounter various forms of discrimination, in‐ cluding outright intentional exclusion, . . . failure to make modifications to existing facilities and practices, . . . segrega‐ tion, and relegation to lesser services.” Id. § 12101(a)(5). To establish a violation of the ADA, “plaintiffs must demon‐ strate that (1) they are ‘qualified individuals’ with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or were otherwise discriminated against by defendants, by
2 At the signing of the historic legislation, President Bush declared that “every man, woman, and child with a disability can now pass through once‐closed doors into a bright new era of equality, independence, and freedom.” He continued, “[t]his historic act is the world’s first comprehen‐ sive declaration of equality for people with disabilities – the first. Its pas‐ sage has made the United States the international leader on this human rights issue.” President George H.W. Bush, Statement upon Signing the Americans with Disabilities Act (July 26, 1990).
4

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 5 of 61
reason of plaintiffs’ disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (citation omitted). Title II of the ADA prohibits discrimination by public entities. It establishes that “no qualified individual with a disability shall, by reason of such disability, be excluded from partici‐ pation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimina‐ tion by any such entity.” 42 U.S.C. § 12132. “Title II does not only benefit individuals with disabilities. . . . Congress specif‐ ically found that disability discrimination ‘costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.’” Frame v. City of Ar‐ lington, 657 F.3d 215, 230 (5th Cir. 2011) (en banc) (citations omitted). Congress instructed the Attorney General to promulgate reg‐ ulations implementing Title II. Those regulations require pub‐ lic entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of quali‐ fied individuals with disabilities.” 28 C.F.R. § 35.130(d). Such a setting “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B. Public entities “shall make reasonable modifi‐ cations in policies, practices, or procedures when the modifi‐ cations are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that mak‐ ing the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130 (b)(7)(i).3
3 This affirmative obligation distinguishes the ADA. Unlike other anti‐dis‐ crimination laws, the ADA “was considered innovative in that it went
5

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 6 of 61
The Supreme Court interpreted Title II in the landmark case Olmstead v. L.C ex rel. Zimring, 527 U.S. 581 (1999). It first noted that “Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘form of discrimination.’” 527 U.S. at 600 (citation and brackets omitted). The Court then rea‐ soned that “unjustified institutional isolation of persons with disabilities is a form of discrimination [that] reflects two evi‐ dent judgments.”
First, institutional placement of persons who can handle and benefit from community set‐ tings perpetuates unwarranted assumptions that persons so isolated are incapable or unwor‐ thy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities of indi‐ viduals, including family relations, social con‐ tacts, work options, economic independence, educational advancement, and cultural enrich‐ ment.
‘beyond a mere nondiscrimination rule to demand the alteration of socie‐ tal structures that, however unintentionally, stand in the way of opportu‐ nities for people with disabilities’ through its reasonable accommodation requirement.” Ariana Cernius, Enforcing the Americans with Disabilities Act for the “Invisibly Disabled”: Not a Handout, Just a Hand, 25 Geo. J. Poverty L. & Pol’y 35, 50 (2017) (citations omitted). Not only are persons with disa‐ bilities “entitled to reasonable accommodations to a public entity’s ser‐ vices, programs, and activities, . . . it is discriminatory when an entity fails to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” Id. (quotation marks and citations omitted).
6

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 7 of 61
Id. at 600–01 (citations and brackets omitted). Because discrimination on the basis of disability might not be obvious, the Court tried to explain the “dissimilar treatment” in simpler terms. It came up with this: “In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommo‐ dations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.” Id. at 601 (citation omitted). Olmstead’s final holding reads as follows:
States are required to provide community‐ based treatment for persons with mental disa‐ bilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treat‐ ment, and the placement can be reasonably ac‐ commodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607.4 This is often referred to as the “integration man‐ date.” Disability Advocates, Inc. v. Paterson (DAI I), 653 F. Supp.
4 Thus, “Olmstead is noteworthy for its broad recognition of the rights of people institutionalized in congregate facilities to live and receive needed services and supports in the community. Critically, Olmstead endorsed the congressional finding in the ADA that institutionalization constituted dis‐ crimination.” Robert D. Dinerstein & Shira Wakschlag, Using the ADA’s “Integration Mandate” to Disrupt Mass Incarceration, 96 Denv. L. Rev. 917, 926 (2019) (citing 42 U.S.C. § 12101(a)(3)). The decision “has come to stand
7

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 8 of 61
2d 184, 190–91 (E.D.N.Y. 2009), vacated on other grounds sub nom. Disability Advocates, Inc. v. New York Coal. for Quality As‐ sisted Living, Inc. (DAI II), 675 F.3d 149 (2d Cir. 2012). “[F]ol‐ lowing Olmstead, courts have looked to the language of the Attorney General’s regulations interpreting Title II, as well as the holding in Olmstead, as the standard by which to deter‐ mine a violation of the ADA’s integration mandate.” Id. (cita‐ tions omitted). Though Olmstead spoke of “the State’s treatment profession‐ als,” courts recognize that any treatment professional, whether employed by the state or not, may be used to show that community placement is appropriate. See Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003). If estab‐ lishing a case required reliance on the government’s own treatment professionals, states could circumscribe the re‐ quirements of Title II. See Joseph S. v. Hogan, 561 F. Supp. 2d 280, 290–91 (E.D.N.Y. 2008); Long v. Benson, No. 4:08‐CV‐26, 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008); see also Martin v. Taft, 222 F. Supp. 2d 940, 972 n.25 (S.D. Ohio 2002).
II. Procedural Background and Preliminary Arguments In 2011, the United States Department of Justice issued a find‐ ings letter summarizing the results of its long investigation into the State of Mississippi’s mental health system. It con‐ cluded that Mississippi was “unnecessarily institutionalizing persons with mental illness” in violation of the ADA’s inte‐ gration mandate. Docket No. 150‐24 at 2. After years of
for a ringing endorsement of community integration of people with men‐ tal disabilities in multiple aspects of daily life.” Id. at 929.
8

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 9 of 61
negotiations failed, the United States filed this suit in 2016. It named the State as the sole defendant. See Docket No. 1. The parties have stipulated that the State is a public entity that must comply with the ADA and its implementing regula‐ tions. Trial Stipulations ¶ 1.5 The State controls and operates the mental health system through the Mississippi Department of Mental Health (DMH), which provides services, and the Mississippi Division of Medicaid, which pays for services for Medicaid‐enrolled persons. Id. ¶ 2. Persons with SMI are “al‐ most always” eligible for Medicaid. Trial Tr. 1402. The United States alleges that Mississippi over‐relies on state psychiatric hospitals in violation of Olmstead. Adults with SMI are forced into segregated hospital settings instead of be‐ ing able to stay in their communities with the help and sup‐ port of their families and local services. The United States claims that as a result, all Mississippians with SMI are denied the most integrated setting in which to receive services, and are at serious risk of institutionalization.6 The case culminated in a four‐week bench trial in June and July of 2019.7 The parties have now submitted their post‐trial
5 The Trial Stipulations were filed at Docket No. 231‐1. In this opinion, the plaintiff’s exhibits are cited as “PX,” the defendant’s exhibits are cited as “DX,” and joint exhibits are cited as “JX.” 6 The United States’ allegations echo President Bush’s lament that “tragi‐ cally . . . the blessings of liberty have been limited or even denied” to many persons with disabilities. President Bush, supra note 2. 7 The attorneys for both sides provided admirable representation to their clients. The Court appreciates how all involved worked together in good faith for the most efficient management of this case, and treated the subject of this matter with the seriousness and respect it deserves. The
9

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 10 of 61
proposed findings of facts and conclusions of law. See Docket Nos. 232–33. Motion practice established that the United States filed this action pursuant to its authority to enforce Title II of the ADA, 42 U.S.C. § 12133, and under the Civil Rights of Institutional‐ ized Persons Act, 42 U.S.C. § 1997a. See United States v. Missis‐ sippi, No. 3:16‐CV‐622‐CWR‐FKB, 2019 WL 2092569, at *2–3 (S.D. Miss. May 13, 2019); see also DAI II, 675 F.3d at 162 (find‐ ing that the United States had standing to bring suit on behalf of thousands of individuals with SMI living in segregated set‐ tings). The United States has complied with the necessary statutory prerequisites. The State has not challenged that these prerequisites have been met at or since trial. The State, however, has raised several arguments that all sug‐ gest the same conclusion: despite the statutory authority to bring such a suit, the United States cannot prevail in this case because it is the sole plaintiff. Without other named plaintiffs or a certified class of individuals, the State says, there is no violation of the ADA. These arguments must be addressed first, because while not expressly articulated as such, they in‐ voke the basic principle of Article III standing that a plaintiff must suffer an “injury‐in‐fact.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). First, the State argues that the United States has not proven that anyone was unnecessarily hospitalized. Second, the State argues that the United States has not proven that anyone was denied the benefits of, or excluded from participation in, any
professionalism they exhibited during the trial is one which the Court wishes it experienced in each of its cases.
10

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 11 of 61
community‐based program. Third, the State contends that be‐ cause the United States does not have named plaintiffs who are currently institutionalized, this case is “only” an at‐risk of institutionalization case. Docket No. 232 at 15. The first two arguments were refuted at trial. The United States’ experts provided dozens of examples of individuals who were unnecessarily hospitalized or hospitalized too long because they were excluded from community‐based services. Some of the persons the United States’ experts analyzed for this suit were still hospitalized when the experts interviewed them. All of that evidence will be discussed below. In this sec‐ tion, though, the Court will discuss the third argument: whether this case is somehow deficient for emphasizing that Mississippians remain at risk of institutionalization and re‐in‐ stitutionalization. Most of the cases brought pursuant to Title II’s integration mandate are brought by individual plaintiffs or classes of per‐ sons. E.g., Olmstead, 527 U.S. at 593 (reciting that plaintiffs L.C. and E.W. were persons with disabilities who challenged their institutionalization). This case is different. Here, the United States alleges, inter alia, that Mississippi’s system pushes thousands of people into segregated hospital settings that could have been avoided with community‐based services. When persons with SMI are eventually discharged, it claims, Mississippi’s ongoing lack of community‐based services means they are at serious risk of re‐institutionalization. The Fifth Circuit has not reviewed a similar case, so decisions from around the country guide this Court’s determination. Cf. Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018), as revised (Sept. 25, 2018) (“If there is no directly controlling
11

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 12 of 61
authority, this court may rely on decisions from other circuits to the extent that they constitute a robust consensus of cases of persuasive authority.”). The cases show that Title II protects not only those persons currently institutionalized, but also those at serious risk of in‐ stitutionalization. See Steimel v. Wernert, 823 F.3d 902, 911–13 (7th Cir. 2016); Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v. Delia, 709 F.3d 307, 321–22 (4th Cir. 2013); M.R. v. Dreyfus, 663 F.3d 1100, 1116 (9th Cir. 2011), amended by 697 F.3d 706 (9th Cir. 2012); Fisher, 335 F.3d at 1181; Steward v. Ab‐ bott, 189 F. Supp. 3d 620, 633 (W.D. Tex. 2016); Pitts v. Green‐ stein, No. 10‐635‐JJB‐SR, 2011 WL 1897552, at *3 (M.D. La. May 18, 2011); DAI I, 653 F. Supp. 2d at 187–88 (finding violation of ADA and Rehabilitation Act where approximately 4,300 in‐ dividuals with SMI were “residing in, or at risk of entry into” segregated settings), vacated sub nom. DAI II, 675 F.3d at 162 (finding that original plaintiff lacked organizational standing but the United States could bring such a suit). In other words, the prospective approach taken by the United States is sup‐ ported by the weight of authorities from around the country. The State argues that these cases have differing fact patterns. The argument is unpersuasive because these cases all evalu‐ ated the key premise at issue here—whether at risk of institu‐ tionalization claims are valid. In Pashby, for example, the Fourth Circuit rejected the idea that an Olmstead claim is limited to instances of “actual insti‐ tutionalization.” 709 F.3d at 321. It instead agreed with the plaintiffs that Olmstead protects those facing “risk of institu‐ tionalization.” Id. at 322. The Tenth Circuit added that a con‐ trary conclusion makes little sense, as the ADA’s “protections
12

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 13 of 61
would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could chal‐ lenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Fisher, 335 F.3d at 1181; see also Steimel, 823 F.3d at 912. “Unsurprisingly, . . . courts of appeals applying the disability discrimination claim recognized in Olmstead have consistently held that the risk of institutionalization can support a valid claim under the inte‐ gration mandate.” Davis, 821 F.3d at 263 (collecting cases). Unsatisfied with this principle, Mississippi pivots, and says those cases are distinguishable because those defendants were making “policy changes” to take away services, whereas here, Mississippi is simply moving slowly on deinstitutional‐ ization. But that is not a complete statement of the facts or the law. The evidence showed that Mississippi is making policy changes that both decrease and increase institutionalization. For example, the State is increasing hospital beds at some of its facilities. The law, meanwhile, indicates that the ADA and Olmstead protect persons trapped in a snail’s‐pace deinstitu‐ tionalization. The ADA is unique among civil rights laws. It is “a ‘broad mandate’ of ‘comprehensive character’ and ‘sweeping pur‐ pose’ intended ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and so‐ cial mainstream of American life.’” Frame, 657 F.3d at 223 (ci‐ tations omitted). Somewhat unusually, the ADA “impose[s] upon public entities an affirmative obligation to make reasona‐ ble accommodations for disabled individuals. Where a de‐ fendant fails to meet this affirmative obligation, the cause of that failure is irrelevant.” Bennett‐Nelson v. Louisiana Bd. of
13

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 14 of 61
Regents, 431 F.3d 448, 454–55 (5th Cir. 2005) (emphasis added and citations omitted). This affirmative obligation extends to deinstitutionalization cases. Olmstead explicitly holds that “States are required to pro‐ vide community‐based treatment” if three elements are met. 527 U.S. at 607 (emphasis added).8 None of those elements turn on whether the State is eliminating services or failing to provide services. The rate‐of‐change question is instead folded into element three of the standard; whether commu‐ nity placement “can be reasonably accommodated.” Id. Case law also indicates that states dragging their feet on de‐ institutionalization can be held accountable under Olmstead. In Frederick L., the Third Circuit was faced with a situation with similarities to our own. Both parties sought deinstitu‐ tionalization and citizens’ “integration into community‐based healthcare programs.” Frederick L. v. Dep’t of Pub. Welfare of Pa. (Frederick L. II), 422 F.3d 151, 154 (3d Cir. 2005). They disputed only the timeline of implementation (or lack thereof). The ap‐ pellate court found that although the Commonwealth of Pennsylvania “proffers general assurances and good faith
8 Similarly, the ADA’s implementing regulations provide that public enti‐ ties “shall make reasonable modifications in policies, practices, or proce‐ dures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i) (emphasis added). Noth‐ ing in this regulation provides an exception for states that characterize segregation on the basis of disability as a mere failure to act. Such an ex‐ ception might well swallow the rule.
14

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 15 of 61
intentions to effectuate deinstitutionalization,” that was not enough to satisfy the ADA.
General assurances and good‐faith intentions neither meet the federal laws nor a patient’s ex‐ pectations. Their implementation may change with each administration . . . , regardless of how genuine; they are simply insufficient guarantors in light of the hardship daily inflicted upon pa‐ tients through unnecessary and indefinite insti‐ tutionalization. Id. at 158–59. The Third Circuit concluded that under Olmstead, states must provide more than “a vague assurance” of “future deinstitutionalization”; that “verifiable bench‐ marks or timelines” are “necessary elements of an acceptable plan”; and that any plan must “demonstrate a commitment to community placement in a manner for which [the state gov‐ ernment] can be held accountable by the courts.” Id. at 155– 56. This Court agrees, and will therefore consider the State’s arguments regarding the timing of deinstitutionalization later in the Olmstead analysis, rather than as a bar to the entire ac‐ tion. Given all of these authorities, the Court cannot sustain the State’s preliminary legal arguments. The Court will now turn to the evidence.
III. Mississippi’s Mental Health System Mississippi’s mental health system looks like a broad contin‐ uum of care—with community services on one end and the state hospitals on the other. On one end, the State is divided
15

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 16 of 61
into regions, each covered by a community mental health cen‐ ter that provides a range of services. On the other end, a hand‐ ful of state hospitals are used to institutionalize patients when necessary. Dr. Robert Drake, one of the United States’ experts, testified that the community‐based system described in Mississippi’s manuals “is well written.” Trial Tr. 105. In practice, however, the continuum of care morphs from a line into a circle. Mis‐ sissippians with SMI are faced with a recurring cycle of hos‐ pitalizations, without adequate community‐based services to stop the next commitment. This process of “cycling admis‐ sions” is “the hallmark of a failed system.” Trial Tr. 119. A. Community‐Based Services “The State offers community‐based mental health services primarily through fourteen regional community mental health centers (CMHCs). DMH is responsible for certifying, monitoring, and assisting the CMHCs.” Trial Stipulations ¶ 5. DMH promulgates standards for the CMHCs and provides them with grant funding, but the management of each CMHC is left to a board appointed by the county supervisors within the catchment area covered by the CMHC. Id. ¶ 7; Trial Tr. 1579. “Community‐based services” refers to a bundle of evidence‐ based practices. If these services are provided in a county, they are provided through the regional CMHC. Each kind of service is described in more detail below.
 Programs of Assertive Community Treatment (PACT): PACT is the most intensive community‐based service available in Mississippi. It is for individuals “who have the most severe and persistent mental illnesses, have
16

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 17 of 61
severe symptoms and impairments, and have not bene‐ fited from traditional outpatient programs.” JX 60 at 215; see Trial Stipulations ¶¶ 189–90. PACT teams include some combination of psychiatric nurse practitioners, psychiatrists, registered nurses, community support specialists, peer support specialists, employment and housing specialists, therapists, and program coordina‐ tors. See Trial Tr. 529 and 2194. Currently, PACT services are offered in Mississippi through eight PACT teams, which together cover 14 of Mississippi’s 82 counties. See PX 413; Trial Stipulations ¶ 195.  Mobile Crisis Response Services: “All fourteen CMHC re‐ gions established Mobile Crisis Response Teams in 2014. Mobile crisis response services are required by DMH regulation to be available 24 hours a day, 7 days a week, 365 days a year.” Trial Stipulations ¶¶ 208–09.  Crisis Stabilization Units (CSUs): “CSUs provide psychi‐ atric supervision, nursing, therapy, and psychotherapy to individuals experiencing psychiatric crises, and are designed to prevent civil commitment and/or longer‐ term inpatient hospitalization by addressing acute symptoms, distress, and further decompensation.” Id. ¶ 212. There are nine CSUs in Mississippi. They are lo‐ cated in Batesville, Brookhaven, Cleveland, Corinth, Grenada, Gulfport, Laurel, Newton, and Jackson. Id. ¶ 222.9
9 The ninth CSU was added in Hinds County, the State’s most populous county, in the spring of 2019, past the fact cut‐off date agreed to by the parties. See Trial Tr. 2202. Nevertheless, this is relevant for understanding the complete range of services currently provided by DMH.
17

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 18 of 61
 Community Support Services: Community support ser‐ vices are similar to PACT services, but are less intensive. They allow healthcare professionals to provide in‐home services like medication management and referrals to other service providers. Medicaid will reimburse up to 100 hours of community support services per person per year. See Trial Tr. 40 and 1345.
 Peer Support Services: “Peer Supports are provided in Mississippi by Certified Peer Support Specialists (CPSS), individuals or family members of individuals who have received mental health services and have received train‐ ing and certification from the State. CPSS may work in State Hospitals, as part of PACT or Mobile Crisis Re‐ sponse Teams, for CMHCs, or for other providers and serve as a resource for individuals with mental illness. Peer specialists engage in person‐centered activities with a rehabilitation and resiliency/recovery focus. These ac‐ tivities allow consumers of mental health services and their family members the opportunity to build skills for coping with and managing psychiatric symptoms and challenges associated with various disabilities while di‐ recting their own recovery.” Trial Stipulations ¶¶ 251– 52.
 Supported Employment: “Supported Employment for SMI assists individuals with severe and persistent mental ill‐ ness in obtaining and maintaining competitive employ‐ ment.” Id. ¶ 227. “In FY17 116 individuals with SMI re‐ ceived supported employment.” Id. ¶ 232.
18

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 19 of 61
 Permanent Supported Housing: “According to SAMHSA,10 Permanent Supported Housing is an evidence‐based practice that provides an integrated, community‐based alternative to hospitals, nursing facilities, and other seg‐ regated settings. It includes housing where tenants have a private and secure place to make their home, just like other members of the community, and the mental health support services necessary to maintain the housing.” Id. ¶ 235. In Mississippi, supported housing services are de‐ livered through a program known as CHOICE. “CHOICE recipients receive mental health services from the local CMHC or other providers and are eligible for a rental subsidy administ[ered] through MHC.” Id. ¶ 237. “In FY17 205 individuals were served through CHOICE.” Id. ¶ 249.
The evidence established that the descriptions of the services provided by CMHCs is adequate. The problem is that the de‐ scriptions do not match the reality of service delivery, in terms of what is actually provided and where it is provided. Some of those realities are presented below.
1. PACT is unavailable and under‐enrolled. The following map provides an understanding of the regional catchment areas that each CMHC covers. It shows that PACT services do not exist in 68 of Mississippi’s 82 counties.
10 The Substance Abuse and Mental Health Services Administration (SAMHSA) is an agency within the U.S. Department of Health and Hu‐ man Services.
19

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 20 of 61
Figure 1 Mississippi Counties with PACT Teams as of June 201811
PACT is the most intensive community‐based service. It tar‐ gets individuals who need the most assistance staying out of the hospital. The prime candidate for PACT is someone who has had multiple hospitalizations, such as the 743
11 PX 413.
20

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 21 of 61
Mississippians hospitalized more than once between 2015 and 2017. See PX 405 at 28.12 The United States refers to this group as the “heavy utilizers” of the mental health system. Trial Tr. 2468. As of September 2018, however, only 384 people in the state were receiving PACT services. See JX 50 at 8. The problem is obvious. If there are more than 700 heavy utilizers who have been hospitalized multiple times, but fewer than 400 persons receive PACT services, the penetration rate of PACT services is low. Again, one obvious reason for the under‐enrollment of heavy utilizers is geographical. The below map shows that many of Mississippi’s most‐hospitalized persons live in areas where PACT services are not available.
12 Dr. Todd MacKenzie, one of the United States’ experts, compiled state hospital admission records from October 2015 through October 2017. He found that during that time frame, 514 patients were admitted twice, 147 patients were admitted three times, and 82 patients had four or more ad‐ missions. Trial Tr. 278. Over that period, just 30% of state hospital patients accounted for 73% of the total state hospital bed days. See PX 419.
21

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 22 of 61
Figure 2 Home Addresses of the top 30% of Hospital Utilizers13
Even in those 14 counties where PACT exists, there is another problem. Testimony revealed that existing PACT teams are not operating at full capacity. A DMH Bureau Director at‐ tributed the shortfall to “staff issues” and the fact that some
13 PX 419.
22

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 23 of 61
patients “choose not to have that level of intervention in their life.” Trial Tr. 1587–88. The first explanation is understandable. The second is less persuasive. Other states’ experiences show that patients do in fact choose to have intensive community‐based services in their lives. We know this because other states have signifi‐ cantly higher PACT penetration rates. One of the State’s ex‐ perts testified that if Mississippi’s PACT services had the na‐ tion’s average penetration rate, a total of 1,329 Mississippians with SMI would be receiving PACT services. Trial Tr. 1539. That is nearly 1,000 persons more than are being served today.
2. Mobile Crisis Services are illusory. Geographic availability does not always translate into true ac‐ cessibility. The Court heard from Sheriff Travis Patten, the top law enforcement official in Adams County, Mississippi. He testified that although his county is covered by the CMHC for Region 11, when people call the mobile crisis line, the Adams County Sheriff’s Department is dispatched to respond to the call. That is in large part because the mobile crisis team is based in McComb, over an hour away. His department never sees the mobile crisis team. See Trial Tr. 914–15. Ms. Worsham, the certified peer support specialist, has called the mobile crisis line in Gulfport “dozens of times.” Trial Tr. 335. They came only once. Trial Tr. 336. Every other time, they told her to take herself or her client to the hospital or call the police. Trial Tr. 336–37. It is no surprise then that the mobile crisis lines covering Ad‐ ams County and Gulfport are utilized less often than others in the state. The below map shows the utilization of this ser‐ vice by region:
23

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 24 of 61
Figure 3 2017 Mobile Crisis Calls and Contacts per 1000 Residents14
3. Crisis Stabilization Units are not available. Not all of the CMHCs have crisis stabilization units. Sheriff Patten does not have a CSU in Adams County or in the larger Region 11 catchment area. That is a missed opportunity, as
14 PX 415.
24

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 25 of 61
the State does not dispute that CSUs are an effective diversion from hospitalization. DMH data show that CSUs successfully divert a patient from a state hospital 91.85% of the time. See PX 354 at 9.
4. Peer Support Services are not billed. Peer support services are included in the Mississippi Medi‐ caid State Plan, but there is no indication that the service is being utilized across the State. Shockingly, in the three most populous regions of the State, CMHCs billed Medicaid for a total of 17 persons who received peer support services in 2017. See PX 407 at 22; PX 423 at 2; Trial Tr. 1356–57. Meanwhile, Mississippi has only two peer‐run drop‐in cen‐ ters—places that allow anyone suffering from SMI to come in at any time and connect with peers. Those are located in Gulf‐ port and Jackson. See Trial Tr. 328–30 and 2206.
5. Supported Employment is miniscule. In 2018, 257 Mississippians received supported employment services. See DX 302 at 21; Trial Tr. 1515 and 1558. Not surpris‐ ingly, despite working as a peer support specialist within the community, Melody Worsham is not aware of anyone with SMI who has received supported employment services. See Trial Tr. 341. One of the State’s experts, Ted Lutterman, testified that Mis‐ sissippi’s penetration rate on supported employment is “quite low.” Trial Tr. 1515. If it were increased to the national aver‐ age, he said, a total of 1,266 people would benefit from the service. Trial Tr. 1558. That is (once again) 1,000 more people a year than the State is currently serving.
25

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 26 of 61
In 2019, DMH attempted to increase supported employment services by giving new $40,000 grants to seven CMHCs. See DX 12 at 2; Trial Tr. 1631–32. Each grant would pay for one additional supported employment specialist, who in turn could assist another 20 to 25 clients per region. Trial Tr. 1632. While that is a step in the right direction, it represents one fewer supported employment specialist than DMH recom‐ mended per region in 2011, and will help a maximum of 175 Mississippians with SMI. See Trial Tr. 1632. A DMH official explained this at trial by saying, “You just have to go with the funding you have.” Trial Tr. 1632.
6. CHOICE is far too small. The CHOICE housing program is grossly underutilized. Overall, about 400 Mississippians have benefited from CHOICE. See Trial Tr. 742. The map below shows seven CMHC regions with fewer than five individuals enrolled in CHOICE, despite an estimate by the program administrator that over 2,500 beds statewide are needed. See JX 5 at 3.
26

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 27 of 61
Figure 4 CHOICE Program Utilization 2016‐201815
7. Other management concerns. One reason many community services are underutilized is the lack of data‐driven management. See PX 407 at 31; Trial Tr. 1396. DMH executives admitted that they do not regularly
15 PX 416.
27

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 28 of 61
review data on community‐services utilization, much less use that data to drive programmatic changes. See Trial Tr. 1639– 40; Allen Dep. 10–11; Holloway Dep. 34–35; Hurley Dep. 48– 49; Toten Dep. 21–22, 109, 133–34, 140, 194, and 208–09. As an example, the clinical director at South Mississippi State Hos‐ pital testified that the committee established to monitor hos‐ pital readmission rates stopped meeting regularly. Reeves Dep. 24–25. “I think we addressed whatever we were capable of addressing,” he said. Id. at 25. A different kind of management problem concerns DMH’s re‐ lationship with community health providers. DMH views CMHCs as independent, autonomous organizations, see Allen Dep. 14–15 and 45, but DMH sets the standards for the CMHCs and gives them grants for programs, see id. at 14–15 and Trial Stipulations ¶¶ 5–7. It is ultimately DMH’s respon‐ sibility to manage the expansion of community‐based ser‐ vices at CMHCs. B. State Hospitals On the other end of the continuum of care are the state hospi‐ tals. “DMH funds and operates four State Hospitals: Missis‐ sippi State Hospital in Whitfield, MS (MSH), East Mississippi State Hospital, in Meridian, MS (EMSH), North Mississippi State Hospital, in Tupelo (NMSH), MS, and South Mississippi State Hospital, in Purvis, MS (SMSH).”16 Trial Stipulations ¶ 9.
16 DMH also runs the Central Mississippi Residential Center in Newton, a step‐down facility that helps transition individuals from the state hospi‐ tals to the community. See Trial Stipulations ¶ 186.
28

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 29 of 61
In 2018, a total of 2,784 Mississippians were institutionalized across the four hospitals. See PX 412 at 3. That year, the State had 438 state hospital beds.17 See Trial Tr. 2453; PX 412A at 1. These beds cost the State between $360 and $474 per person per day. See PX 452 at 38; PX 453 at 30; PX 454 at 20; PX 455 at 20. Mississippi has relatively more hospital beds and a higher hospital bed utilization rate than most states. See PX 393 at 39; PX 394 at 20 and 27. The State concedes that its “hospital uti‐ lization rate is higher than the national and regional rates,” but emphasizes that since 2008 it has fallen faster than the re‐ gional and national averages. Docket No. 232 at 44. While the number of hospital beds in Mississippi fell from 2011 to 2014, it has remained relatively stable since then. See PX 412 at 1. The graphic below demonstrates such:
17 This total does not include “forensic” beds, which are used for pretrial mental health evaluations or for persons found not guilty by reason of in‐ sanity. See Trial Tr. 1363 and 2321. Forensic beds have largely been ex‐ cluded from this suit because they serve a need in the criminal justice field. That, however, does not mean that the State does not face challenges with the availability of those beds. See Adam Northam, Bed shortage leaves men‐ tally ill in jail, The Daily Leader, Sept. 8, 2018 (“He’s not a criminal, he’s a sick man, and his confinement to the jail instead of the hospital is shame‐ ful, said Lincoln County Sheriff Steve Rushing.”).
29

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 30 of 61
Figure 5 Average Staffed Bed Capacity in State Hospitals18
Bo Chastain, the Director of Mississippi State Hospital, testi‐ fied that he intends to operate the same number of beds each year. Trial Tr. 2272. One of the United States’ experts testified that “East Mississippi [State] Hospital actually added beds as did South Mississippi State Hospital in 2018.” Trial Tr. 1362. When compared to other states, Mississippi allocates signifi‐ cantly more of its budget to institutional settings and corre‐ spondingly less of its budget to community‐based services. See PX 407 at 29. Mississippi’s funding allocation is about a decade behind other states. In 2015, for example, Mississippi’s proportional spending on community‐based services was less than the 2006 national average. See Trial Tr. 1544. The State admits that the share of its budget spent on institu‐ tional care remains above the national average. See Docket
18 PX 412 at 1.
30

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 31 of 61
No. 232 at 44. If federal Medicaid dollars are excluded from the calculation, only 35.65% of Mississippi’s mental health spending went to community‐based services in 2017. See PX 319; PX 407 at 29; Trial Tr. 1419. There is no dispute that the state hospitals are “institutional, segregated settings.” Trial Stipulations ¶ 11. If you are in a state hospital, your “routine is determined by other people, and the food is determined by other people, and your privacy level is determined by []other people.” Trial Tr. 511. Life there is best described by those who have experienced it. According to Blair Duren, who has been admitted on three occasions, state hospitals are “very scary.”
It’s anxiety and depression and paranoia all built up. There is a lot of sick people who are very sick and have worse issues than myself, and it was very hard to be in a hospital because you were told, you know, when to go to bed, when it’s time to eat. There is no freedom. There is no independence at all, no privacy. Trial Tr. 568–69. Another patient told one of the United States’ experts that “it was the most humiliating experience she had ever had in her life.” Trial Tr. 966. Others said it was “like a prison.” Trial Tr. 966. “It’s no life to be in a hospital,” one of the United States’ experts said. “It’s being alive, but that’s dif‐ ferent than having a life.” Trial Tr. 509–10. Ms. Worsham told the Court that: I’m terrified of [state hospitals]. . . . They take all your rights away and there is no dignity. They pump people full of drugs. They make you use
31

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 32 of 61
a community bathroom even though you have your own room. Women who are menstruating have to walk around the halls with a handful of tampons. If I want to rest or if a person wants to rest, they have to just lay in the hallway. They don’t let people rest. Sometimes there is coer‐ cion. I would never want to be there, and I have made efforts in the past to stay out of them. Trial Tr. 335. Individuals at East Mississippi State Hospital have to earn back the privilege of wearing their wedding ring. An expert said that was “unusual and extreme.” Trial Tr. 1333. T.M. is a man with SMI who has been admitted to state hos‐ pitals on six different occasions. Trial Tr. 778. While hospital‐ ized in Meridian, on the other side of the state from his mother in the Delta, he once wrote her a letter saying, “I’m not sure when [or] if I’ll ever see you again.” PX 1102 at 2; Trial Tr. 782. It particularly struck this Court that a single hospitalization can result in you losing custody of your children. That is what happened to Person 11, a 41‐year‐old woman with two daughters. When she was interviewed by one of the United States’ experts, she still had not regained custody of her chil‐ dren. Trial Tr. 853–54. Transition planning is another area of concern. While individ‐ uals being discharged are often given a date to report to the local CMHC, there is no follow‐up or consistent connection to local services. See Trial Tr. 818. DMH documents show that in 2016, only 20% of patients met with a CMHC representative before being discharged from the hospital. See PX 151 at 9. The Social Services Director at MSH, who supervises 40 social
32

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 33 of 61
workers, testified that a social worker’s involvement with the patient ends as soon as the patient leaves the hospital. Flem‐ ing Dep. 8 and 79. It is common for state hospitals to use the same discharge plan even after an individual has returned for another commit‐ ment. Katherine Burson, one of the United States’ experts, “found the discharge planning to be formulaic. People pretty much got the same discharge plan, and it ‐‐ I didn’t see dis‐ charge plans change, even when in the past the discharge plan hadn’t worked.” Trial Tr. 1091. Person 3, for example, was ad‐ mitted to state hospitals three times between 2014 and 2016, and his planning looked identical upon each discharge. See Trial Tr. 819–32. Some patients did not have access to medica‐ tion upon discharge, which led to rehospitalization “rela‐ tively quickly.” Trial Tr. 445.
IV. Everyday Mississippians The Court heard from several DMH executives who testified about the extent of community‐based services currently pro‐ vided by the State.19 They uniformly agreed that the State pri‐ oritizes community‐based care. See Trial Tr. 1613, 1672–73, 2050, 2293, and 2331. One of the challenges mentioned by these witnesses is the lack of a qualified workforce for mental
19 These witnesses included Jake Hutchins, Bureau Director of Behavioral Health at DMH; Marc Lewis, Director of the Bureau of Certification and Quality Outcomes at DMH; Steven Allen, Deputy Executive Director of DMH; Director Chastain of MSH; and Diana Mikula, Executive Director of DMH.
33

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 34 of 61
healthcare employers across Mississippi.20 See Trial Tr. 2258 and 2318–20. The United States, in contrast, called several people who have used the State’s mental health services or whose family mem‐ bers have used such services. They all testified that a lack of community‐based services is devasting to individuals with SMI and their families. The Court heard harrowing and tragic stories about what happens when people fall through the cracks. Through tears, H.B. shared one of those stories. His daughter, S.B., is a 52‐year‐old woman who has relied on the State’s mental health system for approximately three dec‐ ades. S.B. has been in state hospitals 23 times in that span. H.B. has been forced to initiate commitment proceedings several times, because he has no other options and S.B. does not re‐ ceive any services when she is not hospitalized.21 See Trial Tr. 721–42. “I would have liked to have had other options that
20 One of the factors contributing to this problem is a lack of competitive pay. Director Chastain testified that a direct care worker in a state hospital has a starting salary of approximately $17,500, which is far from a living wage. See Trial Tr. 2258. 21 In the winter of 2013‐2014, H.B. was unable to locate his daughter. S.B. had been living in a care home called Creation Elite, where she alleged that a male staff attendant was sexually assaulting her. In response, the owner of the home moved S.B. into an apartment without any oversight, and she quickly stopped taking her medication. See Trial Tr. 726–31; DX 338. Personal care homes seem to be a particularly egregious problem. There is little oversight and nothing to ensure that “care” is actually pro‐ vided.
34

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 35 of 61
were ‐‐ were better options, but they weren’t there.” Trial Tr. 738.22 C.R. told the Court about her cousin, T.M., who has been hos‐ pitalized six times. One time, a social worker at MSH called and asked C.R.—a layperson—“what is the discharge plan for T.M.?” At the time, C.R. did not even know that T.M. had been hospitalized. C.R. has never heard about crisis stabiliza‐ tion services that could help T.M. when he is in the commu‐ nity.23 See Trial Tr. 773–86. The witnesses also offered glimpses into what it is like when the State provides the services it promises. Dr. Kathy Crock‐ ett, Executive Director of Hinds Behavioral Health Services, testified for the State about the array of services provided in Hinds County, including (among other things) a PACT team, crisis stabilization unit, and drop‐in center. See Trial Tr. 2192– 94. She says they serve everyone they can, but would “love to” expand their community‐based services because there are others out there who need assistance. Trial Tr. 2228 and 2235.
22 S.B.’s story gets even sadder. Eighteen years ago, her father took cus‐ tody of her son at three days old, and later adopted him. That child was the product of what H.B., a former police officer, described as a felonious relationship—a married man had taken advantage of his daughter. See Trial Tr. 756–57. Years later, in large part because of the lack of services, S.B.’s mental health declined to a “bad state.” One day she was walking in the street and was struck by a hit‐and‐run driver. She suffered two broken legs, a broken pelvis, and a concussion, resulting in two knee replacement surgeries. Her total hospital stay was five months, including rehabilitation so that she could learn to walk again. See Trial Tr. 731–32 and 764–66. 23 Similar to S.B., T.M. also spent time in a personal care home that was shut down. T.M.’s personal care home was unlicensed. See Trial Tr. 793.
35

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 36 of 61
Kim Sistrunk is the PACT team leader in Tupelo. While she has funding only to provide services to persons living in Lee County, she described a committed, on‐the‐ground team that helps clients manage SMI and learn to live fulfilled lives. Trial Tr. 529 and 540. Her PACT team has a client who, with their support, has maintained a job at a local furniture manufac‐ turer, increased her credit score, and recently bought her own car. Before connecting with PACT, the client was dependent on others to get around. See Trial Tr. 537–38. Mr. Duren, a cli‐ ent who was quoted earlier in this opinion, provided heartfelt testimony about the “dramatic[]” impact Ms. Sistrunk’s team has had on his life—the therapy sessions they offer, their care‐ ful preparation of “med boxes,” and even the fact that they have a washer and dryer on‐site. Trial Tr. 570–72. Ms. Sistrunk has seen firsthand how her team can divert cli‐ ents from hospitalization. The team has a client in his fifties who does not have any family or friends to support him. They noticed that he had become suicidal, and they were able to get him into a crisis stabilization unit for a few days. The provid‐ ers at the CSU “tweaked” his medications successfully. The PACT team was there to pick him up and take him home. Prior to his connection to PACT services, this gentleman had been committed for longer stays in state hospitals because of similar suicidal symptoms. See Trial Tr. 540–41. Ms. Worsham shared Dr. Crockett and Ms. Sistrunk’s senti‐ ments about the impact community‐based services can have.
I have seen amazing progress in people’s recov‐ ery. . . . I have seen people when I first started there that had kind of resolved the life that I thought I had for me back in the day, that I’m
36

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 37 of 61
just going to never work, nobody wants me be‐ cause I’m sick, I’m going to watch TV, Iʹm going to play some crossword puzzles or something, and that’s my life, to all of a sudden people hav‐ ing a desire to go back to school or own a home or get married, you know, real life things, get‐ ting into life, joining a bowling league. Trial Tr. 326.
V. The Experts In many ways, this case is a battle of the experts. A. The United States’ Clinical Review Team The United States retained six experts for its Clinical Review Team (CRT). The CRT was comprised of Dr. Drake,24 Dr. Carol VanderZwaag,25 Mr. Daniel Byrne,26 Dr. Beverly Bell‐
24 Dr. Drake is a medical researcher and psychiatrist. He was admitted as an expert in serious mental illness and mixed methods research on mental health services. See Trial Tr. 104. His expert report was admitted as PX 404. 25 Dr. VanderZwaag is a psychiatrist. She was admitted as an expert in psychiatry and community‐based mental health services assessments. See Trial Tr. 373. Her expert report was admitted as PX 402. 26 Mr. Byrne is a clinical social worker. He was admitted as an expert in clinical social work and assessments for community‐based mental health services. See Trial Tr. 588. His expert report was admitted as PX 401.
37

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 38 of 61
Shambley,27 Dr. Judith Baldwin,28 and Ms. Burson.29 Dr. Drake led the CRT. The United States also hired experts in other fields to assist the CRT. Dr. Todd MacKenzie, a statistician,30 worked with Dr. Drake to draw a randomized, stratified sample of 299 individuals (out of nearly 4,000 total) who were hospitalized at least once between October 2015 and October 2017. PX 404 at 5. Dr. Drake conducted a literature review on the state of commu‐ nity‐based services around the country and worked with the CRT to design a study.31 The CRT then sought to interview
27 Dr. Bell‐Shambley is a psychologist. She was admitted as an expert in psychology, serious mental illness, and community‐based mental health assessments. See Trial Tr. 809. Her expert report was admitted as PX 408. 28 Dr. Baldwin is a registered nurse and a board‐certified specialist in psy‐ chiatric nursing. She was admitted as an expert in psychiatric nursing, se‐ rious mental illness, and assessments for community‐based mental health services. See Trial Tr. 949. Her expert report was admitted as PX 403. 29 Ms. Burson is a board‐certified occupational therapist. She was admit‐ ted as an expert in psychiatric occupational therapy, serious mental ill‐ ness, and community‐based mental health assessments. See Trial Tr. 1064. Her expert report was admitted as PX 406. 30 Dr. MacKenzie was admitted as an expert in statistics and biostatistics. See Trial Tr. 276. His expert reports were admitted as PX 405 and PX 405A. 31 The State argues that the CRT study is unreliable because two of the six CRT members could not identify a similar model used by other states or published in a peer‐reviewed journal. Docket No. 232 at 10–11. But those two CRT members were not responsible for designing the study—Dr. Drake was the expert in research methods, and he testified that the system CRT used is similar to the methods he has employed in hundreds of arti‐ cles he has published in peer‐reviewed journals. See Trial Tr. 98–103 and 166; PX 404 at 5. Interestingly, the State’s attorneys did not ask Dr. Drake whether he knew of any peer‐reviewed studies that used a similar model.
38

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 39 of 61
154 of the 299 individuals in the sample. Id. at 1. The CRT also reviewed medical records for the 154 individuals and, in cer‐ tain instances, spoke with their family members and commu‐ nity service providers. After the interviews and review, the CRT answered four questions for each individual:
1. Would this patient have avoided or spent less time in the hospital if reasonable community‐based ser‐ vices had been available?
2. Is this patient at serious risk of further or future hospitalization in a state hospital?
3. Would this patient be opposed to receiving reason‐ able community‐based services?
4. What community‐based services are appropriate for and would benefit this patient?
Id. at 4. Finally, Dr. MacKenzie used a weighted analysis to draw conclusions about the population of adults with SMI. See Trial Tr. 296. The experts found that “nearly all, if not all, of the 154 patients would have spent less time or avoided hospitalization if they had had reasonable services in the community.”32 Trial Tr. 107; see PX 405 at 5. Of the 150 persons in the sample who were still living, 149 of them (~99%) were not opposed to receiving community‐based services. PX 405 at 5. And of the 122 per‐ sons who were not living in an institution during their
32 “Reasonable community‐based services” was defined as the evidence‐ based practices described earlier in this opinion. See Trial Tr. 107–08.
39

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 40 of 61
interview, 103 of them (~85%) were at serious risk of re‐insti‐ tutionalization. PX 405A.33 The response to the fourth question was not quantified, be‐ cause it was not a “yes or no” question. Instead, the CRT de‐ scribed which community‐based services would benefit and were appropriate for the individual. Here are some of the CRT’s findings on question four:
1. Person 133, interviewed by Ms. Burson, had been ad‐ mitted to a state hospital 16 times at the time of his in‐ terview. He has a work history and supportive family, and because of that support and desire to work, he would benefit from community‐based services. Yet, Person 133 had never received community‐based ser‐ vices. See Trial Tr. 1071–76. At the time of his interview, he was appropriate for and would have benefited from PACT, supported employment, peer support, and mo‐ bile crisis services. PX 406 at 76–80.
33 The State contends in its post‐trial brief that these findings are not sci‐ entific. The argument, which was not presented alongside the State’s other Daubert challenges, see Docket No. 148, is difficult to accept. To the extent the State’s argument turns on nomenclature, it is perfectly acceptable for an expert to describe herself as a “clinician” rather than a “scientist.” See, e.g., Trial Tr. 487 (“I’m a clinician, and I deal with individuals.”). To the extent the State’s argument goes to the merits, however, Dr. Drake specif‐ ically testified that the “most scientific way to address the questions” DOJ asked was the “mixed‐method approach” he used with the CRT. Trial Tr. 156. The truth is that both parties did an excellent job of not attempting to pass off unqualified testimony as expertise. The United States’ experts wrote reports fully satisfying the standards of Daubert and Rule 702, see Hodges v. Mack Trucks, Inc., 474 F.3d 188, 194 (5th Cir. 2006), then testified in accordance with those reports.
40

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 41 of 61
2. Person 3, interviewed by Dr. Bell‐Shambley, was in an acute state at the time of his interview. He was not re‐ ceiving any community‐based services, nor had he af‐ ter any of his three hospital admissions. See Trial Tr. 825–26. At the time of his interview, he was appropri‐ ate for and would have benefited from PACT, mental health therapy, and medication management. PX 408 at 19–22.
3. Person 58, interviewed by Mr. Byrne, had been in and out of state hospitals five times over a two‐year span at the time of her interview. Mr. Byrne testified that she was not receiving any community‐based services be‐ tween hospitalizations. See Trial Tr. 591–93. At the time of her interview, she would have benefited from PACT and permanent supported housing. PX 401 at 25.
4. Person 46 was interviewed by Dr. VanderZwaag at the MSH. He had been admitted to the state hospital 18 times in the previous seven years and would have ben‐ efited from PACT—but had never received it. See Trial Tr. 414–16. At the time of his interview, he was appro‐ priate for and would have benefitted from PACT and permanent supported housing. PX 402 at 71.
5. Person 41 was interviewed by Dr. VanderZwaag while he was living with his father. He was struggling to find work and gain financial independence. He had several prior admissions and would not show up to the CMHC for months at a time, which would lead to hospitaliza‐ tion. He would benefit from a service like PACT but had never received it. See Trial Tr. 418–21. At the time
41

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 42 of 61
of his interview, he also would have benefitted from permanent supported housing. PX 402 at 55. 6. Person 108, interviewed by Dr. Baldwin, was 27 years old at the time of his interview but had been hospital‐ ized eight times in the past nine years. He would have benefited from crisis services when his symptoms be‐ came acute, particularly because he had a good grasp of his own symptoms. Without such a service, he had to rely on hospitals. See Trial Tr. 999–1001. At the time of his interview he was appropriate for and would have benefitted from PACT, crisis stabilization, and community support services. PX 403 at 155–56. 7. Person 132, interviewed by Ms. Burson, has a high school diploma, some college education, and a work history. He had been in state hospitals on three sepa‐ rate occasions. He was not receiving community‐based services, but would have benefited from them because of his work history and desire to be active in the com‐ munity. See Trial Tr. 1082–85. At the time of his inter‐ view, he was appropriate for PACT and supported em‐ ployment. PX 406 at 85. 8. Person 125, interviewed by Ms. Burson, used to work as a commercial truck driver and fisherman. He has been committed to state hospitals on three separate oc‐ casions. Community‐based services could have helped him avoid hospitalization but he was not receiving any such services. See Trial Tr. 1086–90. At the time of his interview, he was appropriate for and would have ben‐ efited from PACT and permanent supported housing. PX 406 at 25.
42

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 43 of 61
Dr. Drake was “surprised” to find that most of the 154 indi‐ viduals the CRT reviewed did not receive the community‐ based services that the State claims to have in its policy man‐ uals. Trial Tr. 105. Ms. Burson, the psychiatric occupational therapist, testified that most of the people she interviewed were not receiving any sort of community‐based services. Trial Tr. 1080–81. The State’s experts have offered no opinions as to why so many of the 154 were without community‐based services between hospitalizations. B. Mississippi’s Clinical Experts Mississippi, of course, hired its own experts. The State hired a group of psychiatrists to review the medical records of patients within the sample that the CRT evalu‐ ated.34 Those experts were Dr. Mark Webb,35 Dr. Benjamin
34 The State also retained Dr. Joe Harris, a psychiatrist at South Mississippi State Hospital. Dr. Harris testified via deposition that as many as half of the people at SMSH do not need to be hospitalized. See Harris Dep. 26. The State has emphasized that its hospitals do not have control over who arrives at their doors because of the statutory commitment process, and should not be held accountable for the number of hospitalizations. It is a valid point. The state hospitals must take who is committed to them and have little recourse to push back, despite clinical opinions that might differ with a chancellor’s determination. See C.W. v. Lamar Cty., 250 So. 3d 1248 (Miss. 2018) (holding that the director of a state hospital may not refuse to admit civilly‐committed patients sent for alcohol and drug therapy, even if those services are not provided at the hospital). This may be an area where DMH could advocate for a change in the commitment process and secure state hospital clinicians a right to appeal. 35 Dr. Webb is a board‐certified psychiatrist whose expert report was en‐ tered as DX 307. See Trial Tr. 1815. Dr. Webb, Dr. Root, and Dr. Younger practice together at the Mississippi Neuropsychiatric Clinic.
43

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 44 of 61
Root,36 Dr. Ken Lippincott,37 Dr. Roy Reeves,38 Dr. Philip Mer‐ ideth,39 Dr. Susan Younger,40 and Dr. William Wilkerson.41 These experts did not conduct interviews and did not evalu‐ ate community‐based services. E.g., Trial Tr. 1878. Instead, they evaluated whether, based on their review of the medical records, the individuals were appropriate for care in a hospi‐ tal at the time of admission.42 The experts came to the same
36 Dr. Root is a board‐certified psychiatrist whose expert report was en‐ tered as DX 306. See Trial Tr. 1863. 37 Dr. Lippincott is a board‐certified psychiatrist and the clinical director at North Mississippi State Hospital. He did not submit an expert report. He testified about the care he provided to the patients he evaluated. See Trial Tr. 1902. 38 Dr. Reeves is a psychiatrist and the clinical director at South Mississippi State Hospital. He did not submit an expert report. His testimony was about the appropriateness of admission of those who were within his care. See Trial Tr. 1931. 39 Dr. Merideth is a board‐certified psychiatrist whose expert report was admitted as DX 305. See Trial Tr. 1987. 40 Dr. Younger is a board‐certified psychiatrist whose expert report was admitted as DX 309. See Trial Tr. 2116. 41 Dr. Wilkerson is a board‐certified psychiatrist whose expert report was admitted as DX 308. See Trial Tr. 2144. 42 An excerpt of Dr. Webb’s testimony helps show the scope of his analysis in this case:
Q: So do you not ‐‐ you do not have an expert opinion today as to whether any of the 13 received adequate community‐based mental health services. Right?
A: That is correct. I was not provided the records. Q: And you donʹt have an opinion on whether the 13 in‐
dividuals should have received additional commu‐ nity‐based mental health services, I take it?
44

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 45 of 61
conclusion: all of the individuals had SMI and the hospital was the least restrictive setting at the time they were admit‐ ted. E.g., Trial Tr. 1875–76. The State’s team then uniformly opined that the individuals they reviewed could not have been properly served in the community at the time of their hospitalization. Dr. Younger explained that the people she reviewed “have severity of ill‐ ness to such a degree that they cannot be treated adequately in the community most of the time despite real good services, medicine, support.” Trial Tr. 2119. The State’s experts also testified that the standard of care was met while in the hospital, and that discharge planning was “adequate[].” See Trial Tr. 1825–40 and 1990. C. Expert Testimony on Costs and Management Issues In addition to the experts who evaluated the 154 individuals in the sample, both sides retained experts to provide more sweeping analyses of the mental health system. The United States called Kevin O’Brien, a healthcare consult‐ ant, who was admitted as an expert in health systems cost analyses.43 See Trial Tr. 1246. Mr. O’Brien created three scenar‐ ios of what it would cost the State to expand community‐ based services. His conclusion was that community‐based care is generally less expensive than hospitalization. PX 409 at 10. This, in large part, is due to the fact that most community‐
A: Correct. I would defer to other experts. Trial Tr. 1841. 43 Mr. O’Brien’s expert reports were admitted as PX 409 and PX 410.
45

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 46 of 61
based care is Medicaid‐reimbursable, while hospitalization is not.44 See Trial Tr. 1584. The State brought Dr. Lona Fowdur, a healthcare economist, to challenge Mr. O’Brien’s cost analysis.45 See Trial Tr. 1717. She testified that Mr. O’Brien did not account for the fixed costs associated with inpatient care, so he overstated the cost of inpatient care and underestimated the cost of community care. See Trial Tr. 1722. She corrected what she perceived as his errors and ultimately concluded that there is not much dif‐ ference between the costs of community care and hospitaliza‐ tion. See Trial Tr. 1744; DX 301 at 4 ¶ 9 (“the average costs of each modality of care are comparable”). Dr. Fowdur never‐ theless encouraged the Court to not compare the costs be‐ cause patient populations in hospitals and in the community are not the same.46 See Trial Tr. 1720 and 1732.
44 Currently, the “IMD exclusion” generally prevents state hospitals from receiving Medicaid reimbursement. The parties seem to agree that if Con‐ gress repealed the IMD exclusion, the State would have more money available for the system as a whole. But see Trial Tr. 1331 (describing new federal IMD waiver and explaining that the IMD exclusion has not pre‐ vented other states from shifting care to community‐based services). 45 Dr. Fowdur’s expert report was admitted as DX 301. 46 The Court must respectfully disagree, in part, with Dr. Fowdur. This case is not primarily about the population of persons at either end of the spectrum—those that will be hospitalized most of the time or those that will never be hospitalized. The testimony and exhibits showed that this case is about the significant number of persons in the middle: those who cycle repeatedly between their communities and hospitals, who could be served less restrictively with community‐based services. That is where the cost comparison is most useful.
46

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 47 of 61
Reviewing the expert opinions, the most conservative esti‐ mate is that the costs of community‐based care and hospitali‐ zation are about equal. This opinion was reiterated by Dr. Jef‐ frey Geller, another of the State’s experts.47 “One very good study of this showed they were about the same,” he said. Trial Tr. 2409. The parties then presented expert testimony about the man‐ agement of the mental health system. Melodie Peet was the United States’ systems expert.48 Ms. Peet found that Missis‐ sippi’s mental health system is not administered in a way that prevents unnecessary hospitalizations.49 See Trial Tr. 1336. The theme of her testimony was that Mississippi has identi‐ fied the correct community‐based services, but a lack of
47 Dr. Geller is a board‐certified psychiatrist and was admitted as an ex‐ pert in psychiatry. See Trial Tr. 2399. In preparing his report, Dr. Geller reviewed medical records and visited each of the four state hospitals, as well as the Central Mississippi Residential Center. His expert report was admitted as DX 303. 48 Ms. Peet was admitted as an expert in the field of mental health admin‐ istration. See Trial Tr. 1320. To prepare her report, she conducted a litera‐ ture review, visited EMSH, and met with representatives from seven CMHCs, the CHOICE housing providers, community social service pro‐ viders such as Stewpot, mental health advocates, and a chancery court clerk. Her expert report was admitted as PX 407. 49 See Trial Tr. 1336 (“There were three primary themes that led to that conclusion. One was the insufficiency of community services throughout the state. Second was, I would say the state still has a hospital‐centric view of their system. And thirdly, there is a complete lack of coordination be‐ tween the hospitals and the community systems which really means sig‐ nificant disruptions in care for the people who are using the system.”).
47

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 48 of 61
effective oversight and data utilization has failed to put that system into practice. See Trial Tr. 1337. One helpful illustration of the problem came when Ms. Peet compared PX 419, a map showing the home addresses of the top 30% of state hospital bed utilizers, with PX 413, a map showing where PACT teams—which she called “ACT pro‐ grams”—are available. See Trial Tr. 1338–39. The overlay showed gaping holes in coverage. She explained that “the people represented by the red dots are the very people who are targeted as the ideal patient to be served by an ACT pro‐ gram. So this isn’t a theoretical analysis. These are real human beings who have demonstrated by their pattern of service uti‐ lization that they would be benefited by an ACT program. And many of them are in the unserved areas of the state.” Trial Tr. 1339. Ms. Peet pointed out that the PACT program is not just una‐ vailable for many Mississippians, but is an example of DMH’s inability to use data and strategic planning to expand ser‐ vices. In its most recent end‐of‐year report, for example, DMH discussed its goal of expanding PACT utilization by 25%. See JX 50 at 8. The goal was conservative, and DMH did not meet it. The number of PACT users went from 328 in 2017 to only 384 in 2018. See Trial Tr. 1340. Ms. Peet said,
The fact that over three years after the establish‐ ment of the last ACT program, the ACT services are still significantly under‐enrolled, I would say operating at about 50 percent capacity, while the state has been paying the rate for a fully sub‐ scribed ACT program means a lot of things, but
48

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 49 of 61
mostly that people who need the service desper‐ ately aren’t getting it. Trial Tr. 1341 (emphasis added). This problem extends beyond PACT. Ms. Peet explained with precision how certain services are not available in certain re‐ gions, and how statewide there is a gross underutilization of available community‐based services. See Trial Tr. 1345–46 (discussing underutilization of Medicaid billing for commu‐ nity support services), 1351–53 (discussing underutilization of mobile crisis services), 1354 (discussing lack of capacity for supported employment), 1354–55 (discussing lack of capacity for supported housing), and 1356–57 (discussing underutili‐ zation of Medicaid billing for peer support services). Finally, Ms. Peet concluded that Mississippi, having already identified the correct services, is capable of changing the sys‐ tem to make services more available and effective. She sug‐ gested expanding community‐based services statewide, ac‐ tively using data to target future services, and increasing oversight of and technical assistance to providers. See Trial Tr. 1377–84. In response, the State called Ted Lutterman, an expert in “pol‐ icy analysis regarding the financing and the organization of state mental health systems.”50 Trial Tr. 1493. He concluded that when compared with other states in the region, Missis‐ sippi has increased its spending on community‐based
50 Mr. Lutterman’s report was entered as DX 302. He used self‐reported state and national data sets to compare Mississippi’s use of hospitalization and community‐based services to other states in the region.
49

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 50 of 61
services more rapidly than others.51 See Trial Tr. 1509. “Be‐ tween 2001 and 2015,” he wrote in his report, “Mississippi nearly doubled its investment on community‐based services, increasing its expenditures during this period by 98%. Only one state in the southern region, Georgia, surpassed Missis‐ sippi’s rate.” DX 302 at 6. This testimony suggests that Missis‐ sippi should receive credit for its growth. Dr. Geller presented similar testimony. He said that when Mississippi’s “distribution of funding” is compared to other states, “Mississippi’s not an outlier.” Trial Tr. 2413. Yet Dr. Geller also agreed that Mississippi has one of the highest per‐ capita rates of psychiatric beds in the country. See Trial Tr. 2425. One table he reviewed from the witness stand showed that only the District of Columbia and Missouri have higher rates of psychiatric beds than Mississippi. PX 393 at 41–42. Dr. Geller’s comparisons were not always reliable. His expert report had admonished the United States, claiming that its “assessment of Mississippi’s mental health spending has no relationship to facts.” Trial Tr. 2427. Dr. Geller supported that conclusion by asserting that “Mississippi was spending 19%
51 Mr. Lutterman also testified that when states expand Medicaid, they see a larger increase in people served by community‐based services. See Trial Tr. 1496. Mississippi, of course, has not made such an expansion despite its high demand for Medicaid services. See Center on Budget and Policy Priorities, How Would the Medicaid Expansion Affect Mississippi?, https://www.cbpp.org/sites/default/files/atoms/files/medicaid_expan‐ sion_mississippi.pdf (last visited Aug. 23, 2019) (concluding that Medi‐ caid expansion in Mississippi would render an additional 231,000 adults eligible for health care). The evidence nevertheless showed that Missis‐ sippi need not expand Medicaid, but can satisfy the requirements of Olmstead by better utilizing existing Medicaid rules. See Trial Tr. 1230.
50

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 51 of 61
of its mental health dollars on state hospitals and 80% on the community.” Trial Tr. 2427. But Dr. Geller’s assertion was based on the spending data for a state labelled “MI”— Michigan. Trial Tr. 2428. In truth, the data for Mississippi— “MS”—was the inverse; Mississippi was spending 77% of its mental health dollars on state hospitals and 21% on commu‐ nity‐based care. Trial Tr. 2428; see also PX 395 at 15. Finally, Dr. Geller cautioned the Court that health disparities are related to poverty, and opined that because Mississippi is a very poor state, even an increase in funds might not solve Mississippi’s mental health problem. “Mississippi had one of the lowest rates of providers per capita of any state. This means that if you put in funds, you still might not get the ser‐ vices because you don’t have the people to provide the ser‐ vices, that poverty, being in a rural area, lack of providers, ac‐ cess to services, puts Mississippi at a high ranking for poor access to services.” Trial Tr. 2407.
VI. Mississippi Is Violating the ADA The stipulations and testimony establish the basics. Thou‐ sands of Mississippians suffer from SMI and are qualified in‐ dividuals with disabilities under the ADA. The State is re‐ quired to comply with Title II of that law. Yet the State’s men‐ tal health system depends too much on segregated hospital settings and provides too few community‐based services that would enhance the liberty of persons with SMI. The “great majority” of those Mississippians “would prefer to receive
51

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 52 of 61
their services in the communities where they are living.” Trial Tr. 1331.52 Even understanding these basics, though, the sheer number of expert opinions, witnesses, and legal arguments can obfus‐ cate whether Mississippi’s system actually violates the Su‐ preme Court’s mandate in Olmstead. For guidance, then, it is important to return to the text of that case. Olmstead’s final holding says that “States are required to pro‐ vide community‐based treatment for persons with mental disabilities when” (1) “treatment professionals determine that such placement is appropriate,” (2) “the affected persons do not oppose such treatment,” and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental dis‐ abilities.” 527 U.S. at 607. Each of these elements will be dis‐ cussed in turn. First, the treatment professionals on the CRT determined that the individuals they interviewed would be appropriate for community‐based services. They described exactly which community‐based services would be beneficial to the pa‐ tient’s current and future needs.53 The State’s experts, in
52 The great majority of Mississippi’s hospitalized persons are also on Medicaid. See PX 488; Trial Tr. 2284 (“85.3% of women in the [MSH] re‐ ceiving unit [have] Medicaid or Medicaid plus another form of insur‐ ance.”). 53 The State complains that none of the CRT members splintered their findings on the first question: would the individual have avoided hospi‐ talization or spent less time in a hospital. The State observes that avoiding hospitalization and spending less time there are two different things. That is true. But the way the CRT designed question one is consistent with
52

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 53 of 61
contrast, limited their review to the hospitalizations of the past. They did not address whether the individuals are pres‐ ently suited for community‐based services. In other words, they answered a question about the past despite this being a case about the past and the future. They did not refute the CRT’s findings on this element of Olmstead. Second, the CRT found that everyone they interviewed, ex‐ cept for one individual, was not opposed to treatment in the community. The State’s experts never addressed this question and did not refute the CRT’s findings on this point. Third, the United States’ experts showed that providing com‐ munity‐based services can be reasonably accommodated within Mississippi’s existing mental health system. Ms. Peet testified that the State already has the framework for provid‐ ing these services, and can more fully utilize and expand that framework to make the services truly accessible. The State’s experts did not refute this testimony. While they testified that Mississippi is doing well when compared to others in the re‐ gion, that is not the applicable standard. And the State’s own experts admitted that institutional and community care cost the system the same amount of money, so the State cannot claim that the resources are not available or that the costs con‐ stitute an unreasonable accommodation. Overall, when the evidence is evaluated under the precise standard set forth in Olmstead, the United States has proven
Olmstead. Community‐based services are a less‐restrictive environment than state hospitals, and therefore are appropriate if they can help persons with disabilities avoid or minimize hospitalization.
53

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 54 of 61
that Mississippi’s system of care for adults with SMI violates the integration mandate of the ADA.
VII. Mississippi’s Defenses A state is excused from having to make reasonable modifica‐ tions if it “can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). Mississippi argues that the United States’ proposed modifica‐ tions would “fundamentally alter” the nature of its mental health system. Docket No. 232 at 64. Under Olmstead, the State has the burden “to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequi‐ table, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of per‐ sons with mental [illness].” 527 U.S. at 604. The Supreme Court has explained that one way a state can take advantage of this defense is by demonstrating “a compre‐ hensive, effectively working plan for placing qualified persons with mental [illness] in less‐restrictive settings, and a waiting list that moved at a reasonable pace.” Id. at 605–06 (emphasis added). A sufficient plan is one that “set[s] forth reasonably specific and measurable targets for community placement” and demonstrates a “commitment to implement” its terms. Frederick L. II, 422 F.3d at 158 (rejecting Pennsylvania’s funda‐ mental alteration defense). DMH’s senior executives testified that Mississippi does not have such a plan. Deputy Executive Director Steven Allen, a 30‐year veteran of DMH, said he had never seen an Olmstead
54

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 55 of 61
plan at DMH. He added that even if he had, it would be “use‐ less.” Trial Tr. 2025. Executive Director Diana Mikula, a 24‐ year veteran of the agency, defended her deputy by claiming that he would not need to read an Olmstead plan in his job because “he knew the vision.” Trial Tr. 2381. Somewhat con‐ fusingly, she then claimed that DMH’s Olmstead plan is “a col‐ lection of documents” such as annual strategic plans and budget requests—documents that Mr. Allen has read. See Trial Tr. 2316–17 and 2381. This latter testimony was not persuasive. In the two‐and‐a‐ half years Mr. Allen has served as Deputy Executive Director, he has been “in charge of the programmatic responsibilities of the agency, whether it be the programs [it] directly operate[s] that provide services, or through the grants or the certification process, those divisions and bureaus.” Trial Tr. 2025. If he has never seen an Olmstead plan at DMH, this Court is inclined to believe him, since he has the longest tenure of the executives and is in the best position to know. Ms. Mikula’s eagerness to defend her staff, her agency, and to some extent herself is understandable. But it would be very odd for Mr. Allen, a person whose judgment she trusts, and a person with substantial experience in the mental health field, to be unaware that the strategic plans and budgets he reviews are, in fact, an Olmstead plan. It is more likely that DMH simply lacks an Olmstead plan. In any event, the Court also cannot accept the alternative sug‐ gestion—that any plan Mississippi has is “comprehensive” and “effective[].” Olmstead, 527 U.S. at 605–06. A collection of smaller, routine documents is hardly “comprehensive.” And the evidence discussed above showed that the existing
55

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 56 of 61
documents are not effectively meeting the State’s own goals. Among other examples, PACT planned to expand over 2017‐ 2018 and failed to meet its modest goal; supported employ‐ ment is below the level DMH recommended in 2011; and de‐ spite the State’s best intentions about shifting from hospitali‐ zation to community‐based care, the number of state hospital beds has been stable since 2014. If a comprehensive, effective plan would satisfy Olmstead, Mississippi’s scattered, ineffective assemblage of documents cannot. The State’s attorneys then press that the cost of community‐ based services is itself a fundamental alteration. But as al‐ ready mentioned, by the admission of its own experts, com‐ munity‐based services and hospitalization cost the system ap‐ proximately the same amount of money, though community‐ based services receive federal Medicaid reimbursement that hospitalization does not. The worst case is that the State would spend the same amount of money it does now—just redirected to more cost‐effective services. The best case for the State is that the movement from hospitalization to commu‐ nity‐based services would save money. The case law further weakens the State’s argument. The weight of authority indicates that “budgetary constraints alone are insufficient to establish a fundamental alteration de‐ fense.” Pa. Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374, 380 (3d Cir. 2005) (collecting cases); see also M.R., 697 F.3d at 736; Frederick L. v. Dep’t of Pub. Welfare (Frederick L. I), 364 F.3d 487, 495 (3d Cir. 2004); Fisher, 335 F.3d at 1183 (“If every alteration in a program or service that required the out‐ lay of funds were tantamount to a fundamental alteration, the
56

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 57 of 61
ADA’s integration mandate would be hollow indeed.”). “Congress and the courts have recognized that compliance with Olmstead may require ‘substantial short‐term burdens, both financial and administrative’ to achieve the goal of com‐ munity integration.” Dinerstein & Wakschlag, supra note 4, at 951 (citations omitted). For these reasons, Mississippi has not proven an affirmative defense.
VIII. Moving Forward People living with SMI face very real, and sometimes very dangerous, symptoms that can make daily life extraordinarily difficult. With those individual challenges comes a system that, even in its best form, will have problems. As the State has pointed out, at no point during the four weeks of trial was any expert willing to parade their home state as an example of a mental health system without flaws. States from every corner of the country have struggled to pro‐ vide adequate mental health care services. Mississippi has its own unique challenges due to its rural nature and limited funding.54
54 The themes that emerged in this trial have been repeated in a variety of legal challenges to Mississippi’s large institutions. It is obvious that low‐ paying, dangerous, and difficult jobs are often hard to fill. See generally Dockery v. Fisher, 253 F. Supp. 3d 832, 840 (S.D. Miss. 2015) (alleging, in part, that constant staffing shortages have contributed to constitutional vi‐ olations at privately run prison); Olivia Y. v. Bryant, No. 3:04‐CV‐251‐TSL‐ FKB, Docket 570 at 41 (S.D. Miss. June 29, 2012) (in case alleging systemic deficiencies in the State’s foster care system, a follow‐up Monitor’s report explains, “[a]s described in the Monitor’s prior reports, persistent staffing
57

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 58 of 61
Despite all of these challenges, the people that care for Missis‐ sippians suffering from SMI should be recognized for their ef‐ forts to expand community‐based care. The State has made some strides. Part of the difficulty of this case is to simultane‐ ously acknowledge that progress and ensure that commu‐ nity‐based services ultimately live up to DMH’s promises. The fact remains that neither Congress nor the Supreme Court have made a state’s good intentions a defense to an Olmstead claim. “General assurances and good‐faith intentions . . . are simply insufficient guarantors in light of the hardship daily inflicted upon patients through unnecessary and indefinite institutionalization.” Frederick L. II, 422 F.3d at 158–59. Perhaps the central difficulty of this case is the question of time. What timeline for expanding community‐based services might constitute a reasonable accommodation? The State
deficits have compromised defendants’ ability to satisfy certain key Set‐ tlement Agreement requirements. . . . [U]nderstaffing has affected both the pace at which the practice model can be implemented and whether imple‐ mentation efforts are effective.”); Depriest v. Walnut Grove Correctional Auth., No. 3:10‐CV‐663‐CWR‐FKB, 2015 WL 3795020, at *15 (S.D. Miss. June 10, 2015) (finding, in case regarding violations of the Eighth Amend‐ ment at State‐run prison, that “Walnut Grove continues to have a problem with understaffing, a condition linked to staff resignations and termina‐ tions. The Court understands the challenge of retaining employees given the salaries offered and the dangers that the job presents. . . . Regardless, being adequately staffed is imperative to Defendants providing a reason‐ ably safe environment.”). The evidence demonstrated that state mental hospitals face these same staffing difficulties. It should come as no sur‐ prise that when the State underfunds its large systems, whether schools, social service agencies, prisons, or mental health providers, the systems become ripe for constitutional violations. If it remains uninterested in fix‐ ing this problem, the State will be doomed to repeat it—and repeatedly have to defend it in federal court.
58

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 59 of 61
argues that no timeline at all should be imposed—it is getting there and should be left alone to do the job. The problem is that the State has known for years that it is over‐institutionalizing its citizens. Eleven years ago, the Mis‐ sissippi Legislature’s PEER Committee found that “[a]lthough the mental health environment in the United States has dramatically changed from an institution‐based system to a community‐based system in recent years, Missis‐ sippi’s mental health system has not reflected the shift in ser‐ vice delivery methods.” PX 363 at 1. Eight years ago, the United States Department of Justice released a comprehensive findings letter and started what would ultimately be five years of fruitless negotiations. DMH’s long‐range strategic plan for 2010‐2020 declared a goal of “creating a community‐ based service system,” but testimony showed that it was not until 2018 that the Department first moved money from hos‐ pitals to community services. Compare JX 63 at 7 with Trial Tr. 1418. No, the history of this case shows that DMH’s move‐ ment toward community‐based services has only advanced alongside the United States’ investigation and enforcement litigation. This Court is keenly aware of the judiciary’s limitations in a systems case such as this. A mental health system should be run by experts and overseen by state officials who respect the law. The only role of this Court is to consider whether Missis‐ sippi’s mental health system is operating in compliance with that law. The weight of the evidence proves that it is not. The United States has met its burden and shown that despite the State’s episodic improvement, it operates a system that un‐ lawfully discriminates against persons with serious mental illness. That discrimination will end only when every
59

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 60 of 61
Mississippian with SMI has access to a minimum bundle of community‐based services that can stop the cycle of hospital‐ ization. Since the United States has proven its case, the Court could order the remedy proposed at trial by the Department of Jus‐ tice and its experts. Acknowledging and understanding the complexity of this system, the progress that the State has made, and the need for any changes to be done in a patient‐ centered way that does not create further gaps in services for Mississippians, however, the Court is not ready to do so. The Court is hesitant to enter an Order too broad in scope or too lacking in a practical assessment of the daily needs of the sys‐ tem. In addition, it is possible that further changes might have been made to the system in the months since the factual cut‐ off. This case is well‐suited for a special master who can help the parties craft an appropriate remedy—one that encourages the State’s forward progress in a way that expedites and priori‐ tizes community‐based care. The evidence at trial showed what the State needs to do. The primary question for the spe‐ cial master is how quickly that can be done in a manner that is practical and safe for those involved. The parties are therefore ordered to submit, within 30 days, three names of potential special masters and a proposal for the special master’s role. A hearing will be held this fall. The proposals and lists may be separate, but the parties should confer prior to that date to see if there might be any agreed‐ upon candidates respected, competent, and neutral enough to do the job.
60

Case 3:16-cv-00622-CWR-FKB Document 234 Filed 09/03/19 Page 61 of 61
This has been a long process. The parties have put nearly a decade’s worth of work into this matter. There has been “a lot of talk,” “a lot of planning,” and “a lot of people . . . hurt in the process.” Trial Tr. 348. But the Court is optimistic that the parties can achieve a system that provides Mississippians struggling with mental illness “the basic guarantees for which they have worked so long and so hard: independence, free‐ dom of choice, control of their lives, [and] the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”55
SO ORDERED, this the 3rd day of September, 2019. s/ CARLTON W. REEVES
United States District Judge
55 President Bush, supra note 2.
61

 
 Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 1 of 27
FKB,TRIAL_SET
U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:16−cv−00622−CWR−FKB

United States of America v. The State of Mississippi Assigned to: District Judge Carlton W. Reeves Referred to: Magistrate Judge F. Keith Ball Related Case: 3:10−cv−00153−HTW−MTP Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/11/2016 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Mathew Schutzer−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW Washington, DC 20350 Email: mathew.schutzer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley McDonald−Federal Gov U. S. DEPARTMENT OF JUSTICE − Tax Division 444 5th Street, Suite 6234 Wshington, DC 20001 202/353−1118 Email: ashley.mcdonald@usdoj.gov ATTORNEY TO BE NOTICED

Candace Mayberry−Federal Gov U. S. ATTORNEY'S OFFICE − Jackson 501 East Court Street Suite 4.430 Jackson, MS 39201 601/965−4480 Fax: 601/965−4409 Email: candace.mayberry@usdoj.gov ATTORNEY TO BE NOTICED

Catharine Adrienne Mallinson−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., NW Washington, DC 20530 202/353−1142 Fax: 202/514−0212 Email: adrienne.mallinson@usdoj.gov TERMINATED: 12/14/2018 ATTORNEY TO BE NOTICED

Deena Fox−Federal Gov U. S. DEPARTMENT OF JUSTICE 601 D Street NW Washington, DC 20004 202/305−1361 Email: deena.fox@usdoj.gov ATTORNEY TO BE NOTICED

Elizabeth C. Kelley−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., N. W. Washington, DC 20530 202/514−0460

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 2 of 27
Fax: 202/514−4883 Email: beth.kelley@usdoj.gov TERMINATED: 03/22/2017 ATTORNEY TO BE NOTICED
Gregory K. Davis−Federal Gov U. S. ATTORNEY'S OFFICE − Jackson 501 East Court Street Suite 4.430 Jackson, MS 39201 601/965−4480 TERMINATED: 11/15/2017
Haley Van Erem−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave, NW Washington, DC 20530 202−514−0579 Email: haley.vanerem@usdoj.gov ATTORNEY TO BE NOTICED
Jessica Elyse Polansky−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue Washington, DC 20005 202−353−1280 Email: jessica.polansky@usdoj.gov ATTORNEY TO BE NOTICED
Jorge Martin Castillo−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW PHB 5923B Washington, DC 20530 202/305−2396 Email: jorge.castillo@usdoj.gov ATTORNEY TO BE NOTICED
Kristin Elizabeth Hucek−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530 202/305−2097 Email: kristin.hucek@usdoj.gov TERMINATED: 08/17/2018 ATTORNEY TO BE NOTICED
Lindsey Weinstock−Federal Gov U. S. DEPARTMENT OF JUSTICE 1425 New York Ave., NW Washington, DC 20005 202/616−2221 Email: lindsey.weinstock@usdoj.gov ATTORNEY TO BE NOTICED
Loretta E. Lynch−Federal Gov U. S. ATTORNEY'S OFFICE − Brooklyn Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201 Email: loretta.lynch@usdoj.gov
Matthew Donnelly−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 3 of 27
Washington, DC 20530 202−616−2788 Email: matthew.donnelly@usdoj.gov ATTORNEY TO BE NOTICED
Maureen Johnston−Federal Gov U. S. DEPARTMENT OF JUSTICE 601 D Street NW Washington, DC 20004 202−353−1146 Fax: 202−514−0212 Email: maureen.johnston@usdoj.gov ATTORNEY TO BE NOTICED
Mitzi Dease Paige−Federal Gov U. S. ATTORNEY'S OFFICE − Jackson 501 East Court Street Suite 4.430 Jackson, MS 39201 601/973−2840 965−4480 Fax: 601/965−4409 or 4032 Email: Mitzi.paige@usdoj.gov ATTORNEY TO BE NOTICED
Patrick Holkins−Federal Gov U. S. DEPARTMENT OF JUSTICE 601 D Street NW Washington, DC 20004 202/305−6630 Email: patrick.holkins@usdoj.gov TERMINATED: 11/08/2019 ATTORNEY TO BE NOTICED
Regan Rush−Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., NW − PHB Washington, DC 20530 202/616−2726 Email: regan.rush@usdoj.gov ATTORNEY TO BE NOTICED
Sarah Teresa Russo−Federal Gov U. S. DEPARTMENT OF JUSTICE 601 D Street NW Washington, DC 20579 202−307−6605 Email: sarah.russo@usdoj.gov ATTORNEY TO BE NOTICED
Steven H. Rosenbaum−Federal Gov U. S. DEPARTMENT OF JUSTICE−Housing & Civil Enforcement Sect Civil Rights Division 950 Pennsylvania Avenue NW Washington, DC 20530 202/305−4013 Fax: 202/514−1116 Email: steven.rosenbaum@usdoj.gov
Vanita Gupta−Federal Gov U. S. DEPARTMENT OF JUSTICE−Housing & Civil Enforcement Sect Civil Rights Division

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 4 of 27
950 Pennsylvania Avenue NW Washington, DC 20530 202/305−3105 Email: vanita.gupta@usdoj.gov

V. Defendant The State of Mississippi

represented by Arthur Martin Edwards , IV PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/352−2300 Fax: 601/360−9777 Email: martin.edwards@phelps.com (Inactive) ATTORNEY TO BE NOTICED
Howard David Clark , III PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/352−2300 Fax: 601/360−9777 Email: clarkt@phelps.com ATTORNEY TO BE NOTICED
James W Shelson PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/360−9724 Fax: 601/360−9777 Email: shelsonj@phelps.com ATTORNEY TO BE NOTICED
LaToya C. Merritt PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/352−2300 Fax: 601369−9777 Email: merrittl@phelps.com ATTORNEY TO BE NOTICED
Mark N. Halbert PHELPS DUNBAR, LLP − Tupelo 201 South Spring St., 7th Floor P. O. Box 1220 (38802) Tupelo, MS 38804 662/842−7907 Fax: 662/842−3873 Email: mark.halbert@phelps.com ATTORNEY TO BE NOTICED
Mary Jo Woods−State Gov OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 550 High Street (39201)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 5 of 27
Jackson, MS 39205−0220 601/359−3680 Email: mwood@ago.state.ms.us ATTORNEY TO BE NOTICED
Nash E. Gilmore PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/352−2300 Fax: 601/360−9777 Email: nash.gilmore@phelps.com ATTORNEY TO BE NOTICED
Nikita S. McMillian BUTLER SNOW LLP−Ridgeland P. O. Box 6010 1020 Highland Colony Pkwy., Ste. 1400 (39157) Ridgeland, MS 39158−6010 601/948−5711 Fax: 601/985−4500 Email: nikita.mcmillian@butlersnow.com TERMINATED: 09/11/2018 ATTORNEY TO BE NOTICED
Reuben V. Anderson PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/352−2300 Fax: 601/360−9777 Email: reuben.anderson@phelps.com ATTORNEY TO BE NOTICED
Robert Gregg Mayer PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/352−2300 Fax: 601/360−9777 TERMINATED: 07/05/2017 ATTORNEY TO BE NOTICED
William T. Siler , Jr. PHELPS DUNBAR, LLP − Jackson P. O. Box 16114 4270 I−55 North (39211) Jackson, MS 39236−6114 601/352−2300 Fax: 601/360−9777 Email: silert@phelps.com ATTORNEY TO BE NOTICED

Date Filed 08/11/2016
09/02/2016

# Docket Text
1 COMPLAINT against The State of Mississippi, filed by United States of America. (Attachments: # 1 Civil Cover Sheet).(TLC) (Entered: 08/11/2016)
2 WAIVER OF SERVICE Returned Executed by United States of America. The State of Mississippi waiver sent on 8/11/2016, answer due 10/11/2016. (Paige−Federal Gov,

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 6 of 27

10/11/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016 10/24/2016 10/24/2016 10/24/2016 10/24/2016 11/07/2016
11/07/2016
11/07/2016 11/07/2016 11/07/2016 11/15/2016 11/15/2016
11/17/2016 11/17/2016

Mitzi) (Entered: 09/02/2016)
3 ANSWER to 1 Complaint by The State of Mississippi.(Anderson, Reuben) (Entered: 10/11/2016)
4 NOTICE of Appearance by James W Shelson on behalf of The State of Mississippi (Shelson, James) (Entered: 10/11/2016)
5 NOTICE of Appearance by William T. Siler, Jr on behalf of The State of Mississippi (Siler, William) (Entered: 10/11/2016)
6 NOTICE of Appearance by Robert Gregg Mayer on behalf of The State of Mississippi (Mayer, Robert) (Entered: 10/11/2016)
7 NOTICE of Appearance by Arthur Martin Edwards, IV on behalf of The State of Mississippi (Edwards, Arthur) (Entered: 10/11/2016)
8 MOTION to Consolidate Cases by The State of Mississippi (Attachments: # 1 Exhibit A − Letter from Gupta to Hood (August 8, 2016), # 2 Exhibit B − Press Release (August 11, 2016))(Mayer, Robert) (Entered: 10/24/2016)
9 MEMORANDUM in Support re 8 MOTION to Consolidate Cases filed by The State of Mississippi (Mayer, Robert) (Entered: 10/24/2016)
10 MOTION to Stay Proceedings by The State of Mississippi (Mayer, Robert) (Entered: 10/24/2016)
11 MEMORANDUM in Support re 10 MOTION to Stay Proceedings filed by The State of Mississippi (Mayer, Robert) (Entered: 10/24/2016)
12 Rule 16(a) Initial Order Telephonic Case Management Conference set for 12/8/2016 03:00 PM before Magistrate Judge F. Keith Ball. No later than seven (7) days prior to the TCMC, a confidential memorandum AND a proposed Case Management Order shall be submitted via e−mail to ball_chambers@mssd.uscourts.gov. Counsel for Plaintiff shall set up the conference and contact the Court at 601−608−4460. (JEJ) (Entered: 11/07/2016)
13 RESPONSE in Opposition re 8 MOTION to Consolidate Cases filed by United States of America (Attachments: # 1 Exhibit Troupe Complaint, # 2 Exhibit United States Complaint, # 3 Exhibit Think Recovery Newsletter, # 4 Exhibit FY2016−2017 State Plan)(Kelley−Federal Gov, Elizabeth) (Entered: 11/07/2016)
14 MEMORANDUM IN SUPPORT re 13 Response in Opposition to Motion, filed by United States of America (Kelley−Federal Gov, Elizabeth) (Entered: 11/07/2016)
15 RESPONSE in Opposition re 10 MOTION to Stay Proceedings filed by United States of America (Kelley−Federal Gov, Elizabeth) (Entered: 11/07/2016)
16 MEMORANDUM IN SUPPORT re 15 Response in Opposition to Motion filed by United States of America (Kelley−Federal Gov, Elizabeth) (Entered: 11/07/2016)
17 Unopposed MOTION for Protective Order Regarding Health Information by United States of America (Attachments: # 1 Exhibit 1. Proposed Protective Order)(Mallinson−Federal Gov, Catharine) (Entered: 11/15/2016)
DOCKET ANNOTATION as to # 17 . Proposed orders are not to be electronically filed as a separate pleading or as an attachment to a pleading, but instead are to be provided to chambers by e−mail (Court's Administrative Procedures for Electronic Case Filing Sec.5.B.). (ND) (Entered: 11/15/2016)
18 PROTECTIVE ORDER REGARDING HEALTH INFORMATION granting 17 Motion for Protective Order. Signed by Magistrate Judge F. Keith Ball on 11/17/2016. (JRB) (Entered: 11/17/2016)
19 Rebuttal re 8 MOTION to Consolidate Cases filed by The State of Mississippi (Attachments: # 1 Exhibit 1 − Letter from Perez to Barbour (December 22, 2011), # 2 Exhibit 2 − Letter from Hood to Smith (August 29, 2014))(Mayer, Robert) (Entered: 11/17/2016)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 7 of 27

11/17/2016 12/01/2016 12/06/2016 12/07/2016 02/14/2017 03/19/2017 03/20/2017 03/21/2017 03/21/2017 03/22/2017 04/12/2017
05/04/2017 05/05/2017
05/11/2017 05/26/2017

20 Rebuttal re 10 MOTION to Stay Proceedings filed by The State of Mississippi (Attachments: # 1 Exhibit 1 − Letter from Perez to Barbour (December 22, 2011))(Mayer, Robert) (Entered: 11/17/2016)
21 NOTICE of Service of Pre−Discovery Disclosure by United States of America (Kelley−Federal Gov, Elizabeth) (Entered: 12/01/2016)
22 ORDER Consolidating Civil Action No. 3:16−cv−622 and Civil Action No. 3:10−cv−153. ALL FUTURE FILINGS SHALL BE FILED IN CIVIL ACTION NO. 3:10−cv−153. Signed by Magistrate Judge Michael T. Parker on 12/6/16. (RRL) (Entered: 12/07/2016)
TEXT−ONLY ORDER cancelling telephonic case management conference set for December 8, 2016. No further written order shall issue from the Court. Signed by Magistrate Judge F. Keith Ball on 12/7/2016. (JEJ) (Entered: 12/07/2016)
23 NOTICE of Appearance by Patrick Holkins−Federal Gov on behalf of United States of America (Holkins−Federal Gov, Patrick) (Entered: 02/14/2017)
131 ORDER: that these cases are no longer consolidated as set out herein. Signed by District Judge Henry T. Wingate on 3/19/2017 (cwl) (Entered: 10/30/2018)
24 NOTICE of Appearance by Mathew Schutzer−Federal Gov on behalf of United States of America (Schutzer−Federal Gov, Mathew) (Entered: 03/20/2017)
25 NOTICE of Appearance by Regan Rush−Federal Gov on behalf of United States of America (Rush−Federal Gov, Regan) (Entered: 03/21/2017)
26 MOTION to Withdraw as Attorney by United States of America (Kelley−Federal Gov, Elizabeth) (Entered: 03/21/2017)
TEXT−ONLY ORDER granting 26 Motion to Withdraw as Attorney. Attorney Elizabeth C. Kelley−Federal Gov terminated. NO FURTHER WRITTEN ORDER SHALL ISSUE. Signed by Magistrate Judge F. Keith Ball on 3/22/2017. (JRB) (Entered: 03/22/2017)
27 Rule 16(a) Initial Order Telephonic Case Management Conference set for 5/4/2017 03:30 PM before Magistrate Judge F. Keith Ball. No later than seven (7) days prior to the TCMC, a confidential memorandum AND a proposed Case Management Order shall be submitted via e−mail to ball_chambers@mssd.uscourts.gov. Counsel for Plaintiff shall set up the conference and, once all the parties are on the line, contact the Court at 601−608−4460. (JEJ) (Entered: 04/12/2017)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Case Management Conference held on 5/4/2017 in Jackson, MS. (JEJ) (Entered: 05/05/2017)
TEXT−ONLY ORDER. This case came before the undersigned for a telephonic case management conference (TCMC) on 5/4/2017. Appearing: Matthew Schutzer, Catharine Mallinson, Candace Mayberry, Regan Rush, Deena Fox, Patrick Holkins, Jim Shelson, and Mary Jo Woods. Based on the parties' submissions and discussion during the TCMC, numerous disputes exist between the parties regarding certain preliminary matters and the terms of a case management order (CMO). Accordingly, the undersigned hereby orders that counsel meet and confer in an attempt to agree to the terms of a CMO, and if unable to agree on all terms, each party must file a motion for entry of a case management order by 5/26/2017. Counsel must attach as an exhibit to the motion a proposed CMO, and as to each CMO term in dispute, counsel must state in the motion the party's position as to why their proposed term(s) should be adopted by the Court. No further written order shall issue from the Court. Signed by Magistrate Judge F. Keith Ball on 5/5/2017. (JEJ) (Entered: 05/05/2017)
28 NOTICE of Appearance by Mary Jo Woods−State Gov on behalf of The State of Mississippi (Woods−State Gov, Mary) (Entered: 05/11/2017)
29 MOTION Entry of a Case Management Order by United States of America (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Schutzer−Federal Gov, Mathew) (Entered: 05/26/2017)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 8 of 27

05/26/2017 05/26/2017 05/26/2017 06/01/2017 06/08/2017
06/08/2017 06/15/2017 06/30/2017 07/05/2017 08/23/2017 10/04/2017 10/10/2017 10/10/2017 10/11/2017 10/13/2017

30 MEMORANDUM in Support re 29 MOTION Entry of a Case Management Order filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 05/26/2017)
31 MOTION for Entry of a Proposed Case Management Order by The State of Mississippi (Attachments: # 1 Exhibit 1 − Joint Stipulation, # 2 Exhibit 2 − Proposed CMO, # 3 Exhibit A − Joint Scheduling Table)(Shelson, James) (Entered: 05/26/2017)
DOCKET ANNOTATION as to # 29 . L.U.Civ.R. 7(b)(2) requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (ND) (Entered: 05/26/2017)
32 RESPONSE in Opposition re 31 MOTION for Entry of a Proposed Case Management Order filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 06/01/2017)
33 Rebuttal re 31 MOTION for Entry of a Proposed Case Management Order filed by The State of Mississippi (Attachments: # 1 Exhibit 1 − Discovery Plan, # 2 Exhibit 2 − Joint Discovery Plan, # 3 Exhibit 3 − Class Action Complaint, # 4 Exhibit 4 − Complaint−in−Intervention, # 5 Exhibit 5 − Joint Rule 26(f) Report)(Shelson, James) (Entered: 06/08/2017)
34 RESPONSE in Opposition re 29 MOTION Entry of a Case Management Order filed by The State of Mississippi (Attachments: # 1 Exhibit 1 − Rebuttal)(Shelson, James) (Entered: 06/08/2017)
35 REPLY to Response to Motion re 29 MOTION Entry of a Case Management Order filed by United States of America (Holkins−Federal Gov, Patrick) (Entered: 06/15/2017)
36 MOTION to Withdraw as Attorney by The State of Mississippi (Mayer, Robert) (Entered: 06/30/2017)
TEXT−ONLY ORDER granting 36 Motion to Withdraw as Attorney. Attorney Robert Gregg Mayer terminated. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 7/5/17 (RBM) (Entered: 07/05/2017)
37 ORDER granting in part and denying in part 29 and 31 Motions for Entry of Proposed Scheduling Order. Signed by Magistrate Judge F. Keith Ball on 8/22/17 (RBM) (Entered: 08/23/2017)
Set Hearing: Telephonic Status Conference set for 10/10/2017 11:30 AM before Magistrate Judge F. Keith Ball. Counsel for the plaintiff shall set up the conference and contact the Court at 601−608−4460. (JEJ) (Entered: 10/04/2017)
38 NOTICE of Appearance by Candace Mayberry−Federal Gov on behalf of United States of America (Mayberry−Federal Gov, Candace) (Entered: 10/10/2017)
RESET Hearing: Telephonic Status Conference reset for 10/11/2017 03:00 PM before Magistrate Judge F. Keith Ball. Counsel for the plaintiff shall set up the conference and, once all the parties are on the line, contact the Court at 601−608−4460. (JEJ) (Entered: 10/10/2017)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 10/11/2017 in Jackson, MS. Appearances: Matthew Schutzer, Regan Rush, Candace Mayberry, Mitzi Dease Paige and Tommy Siler. (JEJ) (Entered: 10/13/2017)
39 CASE MANAGEMENT ORDER. Motions for Amended Pleadings due by 11/13/2017; Discovery due by 10/30/2018; Motions due by 11/14/2018; Settlement Conference set for 10/16/2018 09:00 AM before Magistrate Judge F. Keith Ball. Seven (7) days before the settlement conference, the parties must submit via e−mail to ball_chambers@mssd.uscourts.gov an updated CONFIDENTIAL SETTLEMENT MEMORANDUM. All parties are required to be present at the conference unless excused by the Court. If a party believes the scheduled settlement conference would not be productive and should be cancelled, the party is directed to inform the Court via e−mail of the grounds for their belief at least seven (7) days prior to the conference.

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 9 of 27

10/13/2017 10/26/2017 10/26/2017 11/14/2017 11/15/2017 11/22/2017 11/27/2017 12/05/2017 12/13/2017 12/14/2017
01/03/2018 01/30/2018
02/09/2018 02/13/2018 02/13/2018 02/13/2018 02/13/2018 02/14/2018
02/16/2018

Pretrial Conference set for 4/12/2019, time to be determined, in Courtroom 5B (Jackson) Reeves before District Judge Carlton W. Reeves; Jury Trial set for a two−week term of court commencing 5/20/2019 09:00 AM in Courtroom 5B (Jackson) Reeves before District Judge Carlton W. Reeves. Signed by Magistrate Judge F. Keith Ball on 10/13/2017. (JEJ) (Entered: 10/13/2017)
40 NOTICE of Service of First Interrogatories and First Request for Production by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 10/13/2017)
41 NOTICE of Service of Interrogatories by The State of Mississippi (Shelson, James) (Entered: 10/26/2017)
42 NOTICE of Service of Request for Production by The State of Mississippi (Shelson, James) (Entered: 10/26/2017)
43 NOTICE of Service of Response to Interrogatories by The State of Mississippi (Shelson, James) (Entered: 11/14/2017)
44 NOTICE of Appearance by Ashley McDonald−Federal Gov on behalf of United States of America (McDonald−Federal Gov, Ashley) (Entered: 11/15/2017)
45 NOTICE of Service of Response to Request for Production by The State of Mississippi (Shelson, James) (Entered: 11/22/2017)
46 NOTICE of Service of Response to Interrogatories by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 11/27/2017)
47 NOTICE of Service of Response to Request for Production by United States of America (Holkins−Federal Gov, Patrick) (Entered: 12/05/2017)
48 NOTICE of Service of Second Request for Production by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 12/13/2017)
49 Unopposed MOTION for Protective Order Regarding CCO Health Plan Proprietary Order by The State of Mississippi (Attachments: # 1 Exhibit 1 − Protective Order, # 2 Exhibit 1A − CCO Protective Order Agreement)(Shelson, James) (Entered: 12/14/2017)
50 AGREED ORDER granting 49 Motion for Protective Order Signed by Magistrate Judge F. Keith Ball on 1/3/18 (RBM) (Entered: 01/03/2018)
51 NOTICE of Service of (Responses to Second Request for Production of Documents) Response to Request for Production by The State of Mississippi (Shelson, James) (Entered: 01/30/2018)
52 NOTICE of Service of Second Set of Request for Production by The State of Mississippi (Shelson, James) (Entered: 02/09/2018)
53 Subpoena Returned Executed as to U. S. Department of Housing and Urban Development. (Shelson, James) (Entered: 02/13/2018)
54 Subpoena Returned Executed as to US Dept. of Labor − Office of Disability Employment Policy. (Shelson, James) (Entered: 02/13/2018)
55 Subpoena Returned Executed as to Centers for Medicare and Medicaid Services. (Shelson, James) (Entered: 02/13/2018)
56 Subpoena Returned Executed as to U.S. Dept. of Health and Human Services. (Shelson, James) (Entered: 02/13/2018)
DOCKET ANNOTATION as to # 53 , 54 , 55 , and 56 . Subpoena Return and exhibit are filed as one main document. Exhibits should be scanned separately and docketed as properly identified attachments to the main document within the same docket entry. Attorney is directed to follow this procedure in future filings. L.U.Civ.R. 7.(b)(2). (ND) (Entered: 02/14/2018)
57 Unopposed MOTION for Protective Order by United States of America (Attachments: # 1 Exhibit 1 − Proposed Amended PHI Protective Order, # 2 Exhibit 2 − Proposed Amended PHI Protective Order (Redline))(Schutzer−Federal Gov, Mathew) (Entered: 02/16/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 10 of 27

02/16/2018 03/13/2018 03/20/2018 03/21/2018 04/02/2018 04/03/2018 04/03/2018 04/05/2018
04/13/2018
04/13/2018 04/13/2018
04/16/2018

DOCKET ANNOTATION as to # 57 . Proposed orders are not to be electronically filed as a separate pleading or as an attachment to a pleading, but instead are to be provided to chambers by e−mail (Court's Administrative Procedures for Electronic Case Filing Sec.5.B.). (ND) (Entered: 02/16/2018)
58 NOTICE of Appearance by Kristin Elizabeth Hucek−Federal Gov on behalf of United States of America (Hucek−Federal Gov, Kristin) (Entered: 03/13/2018)
59 ORDER granting 57 Motion for Protective Order. Signed by Magistrate Judge F. Keith Ball on 3/20/18 (RBM) (Entered: 03/20/2018)
60 NOTICE of Service of Response to Request for Production by United States of America (McDonald−Federal Gov, Ashley) (Entered: 03/21/2018)
Set Hearing: Telephonic Discovery Conference set for 4/3/2018 01:30 PM before Magistrate Judge F. Keith Ball. Counsel for the plaintiff shall set up the conference and contact the Court at 601−608−4460. (JEJ) (Entered: 04/02/2018)
61 NOTICE of Stipulation by United States of America (Attachments: # 1 Stipulation)(McDonald−Federal Gov, Ashley) (Entered: 04/03/2018)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Discovery Conference held on 4/3/2018 in Jackson, MS. Appearing: Mathew Schutzer, Jim Shelson, Mitzi Paige, Deena Fox, Patrick Holkins and Regan Rush. (JEJ) (Entered: 04/09/2018)
TEXT−ONLY ORDER: On 4/2/18 the Court held a discovery conference with the parties regarding whether Mississippi Rule of Professional Conduct 4.2 prohibits Plaintiff from meeting ex parte with certain ex−employees and current employees of the State of Mississippi. The Court orders that the parties submit simultaneous briefing on the issue. Both parties are to submit their briefs no later than 4/13/18. The parties then have until 4/20/18 to file any responses. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 4/5/18 (RBM) (Entered: 04/05/2018)
62 MOTION for Order Regarding the Application of Mississippi Rule of Professional Conduct 4.2 by United States of America (Attachments: # 1 Exhibit A Letter from H. Pizzetta to A. Mallinson (Aug. 19, 2016), # 2 Exhibit B Letter from B. Kelley to H. Pizzetta (Oct. 11, 2016), # 3 Exhibit C Email from B. Kelley to J. Shelson (Nov. 9, 2016), # 4 Exhibit D Email from J. Shelson to M. Schutzer (Aug. 2, 2017), # 5 Exhibit E Email from M. Schutzer to J. Shelson (Aug. 18, 2017), # 6 Exhibit F Email from J. Shelson to M. Schutzer (Aug. 18, 2017), # 7 Exhibit G Letter from M. Schutzer to J. Shelson (Sept. 18, 2017), # 8 Exhibit H Email from J. Shelson to M. Schutzer (Mar. 26, 2018), # 9 Exhibit I Email from J. Shelson to M. Schutzer (Mar. 27, 2018), # 10 Exhibit J Letter from J. Shelson to M.J. Ball (Apr. 2, 2018), # 11 Exhibit K Letter from M. Schutzer to M.J. Ball (Apr. 2, 2018))(Schutzer−Federal Gov, Mathew) (Entered: 04/13/2018)
63 MEMORANDUM IN SUPPORT re 62 MOTION for Order Regarding the Application of Mississippi Rule of Professional Conduct 4.2 filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 04/13/2018)
64 Response to Order re TEXT−ONLY ORDER: On 4/2/18 the Court held a discovery conference with the parties regarding whether Mississippi Rule of Professional Conduct 4.2 prohibits Plaintiff from meeting ex parte with certain ex−employees and current employees of the State of Mississippi. The Court orders that the parties submit simultaneous briefing on the issue. Both parties are to submit their briefs no later than 4/13/18. The parties then have until 4/20/18 to file any responses. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 4/5/18 (RBM) filed by The State of Mississippi (Attachments: # 1 Exhibit Exh 1 − Letter to H. Pizzetta 10−11−16, # 2 Exhibit Exh 2 − Letter to Judge Ball 4−2−18, # 3 Exhibit Exh 3 − Response to Defendant's First Set of Interrogatories, # 4 Exhibit Exh 4 − Response to Defendant's First Set of Requests for Production)(Shelson, James) (Entered: 04/13/2018)
65 NOTICE of Receipt of Deposition of Terry Busby, Andrew Day, and Veronica Vaughn by United States of America (Attachments: # 1 Exhibit A (Busby), # 2 Exhibit B (Day), # 3 Exhibit C (Vaughn))(Hucek−Federal Gov, Kristin) (Entered: 04/16/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 11 of 27

04/18/2018 04/20/2018 04/20/2018 05/03/2018 05/03/2018
05/03/2018 05/11/2018 05/14/2018
05/14/2018
05/21/2018 05/25/2018 05/31/2018 06/04/2018 06/06/2018

66 NOTICE of Service of Second Interrogatories and Third Request for Production by United States of America (Holkins−Federal Gov, Patrick) (Entered: 04/18/2018)
67 RESPONSE to Motion re 62 MOTION for Order Regarding the Application of Mississippi Rule of Professional Conduct 4.2 filed by The State of Mississippi (Shelson, James) (Entered: 04/20/2018)
68 RESPONSE to Memorandum re 62 MOTION for Order Regarding the Application of Mississippi Rule of Professional Conduct 4.2 filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 04/20/2018)
69 NOTICE of Service of Amended Second Interrogatories and Amended Third Request for Production by United States of America (Holkins−Federal Gov, Patrick) (Entered: 05/03/2018)
DOCKET ANNOTATION as to # 69 . This document is not accompanied by a certificate of service. A certificate of service must be attached to a document [Administrative Procedures for Electronic Case Filing, Sec. 4.A.1, Sec. 4.B, and Fed.R.Civ.P. Rule 5(d)(1)]. Attorney is directed to file a certificate as CERTIFICATE OF SERVICE and link it to the proper document. (ND) (Entered: 05/03/2018)
70 CERTIFICATE OF SERVICE by United States of America re 69 Notice of Service of Request for Production and Interrogatories (Holkins−Federal Gov, Patrick) (Entered: 05/03/2018)
71 MOTION to Amend/Correct 39 Case Management Order,,,, by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 05/11/2018)
TEXT−ONLY ORDER granting 71 Motion to Amend Expert Designation Deadlines. The Court sets the following deadlines: United States Clinical Review Expert Disclosures due 6/29/18, Remaining United States Expert Disclosures due 7/30/18, Mississippi Expert Disclosures due 9/28/18. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 5/14/18 (RBM) (Entered: 05/14/2018)
72 NOTICE Receipt of Deposition Transcripts by United States of America (Attachments: # 1 Exhibit A (Fleming), # 2 Exhibit B (Newbaker), # 3 Exhibit C (Breland), # 4 Exhibit D (Sartin−Holloway), # 5 Exhibit E (Hurley))(Hucek−Federal Gov, Kristin) (Entered: 05/14/2018)
73 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A (Mokry), # 2 Exhibit B (Wuichet), # 3 Exhibit C (Bailey), # 4 Exhibit D (Maddux))(Holkins−Federal Gov, Patrick) (Entered: 05/21/2018)
74 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A (Pounds), # 2 Exhibit B (Reeves))(Holkins−Federal Gov, Patrick) (Entered: 05/25/2018)
Set Hearing: Telephonic Discovery Conference set for 6/6/2018 02:00 PM before Magistrate Judge F. Keith Ball. Counsel for the plaintiff shall set up the conference and contact the Court at 601−608−4460. (JEJ) (Entered: 05/31/2018)
75 NOTICE of Service of (Amended Second Set) Response to Interrogatories by The State of Mississippi (Shelson, James) (Entered: 06/04/2018)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Discovery Conference held on 6/6/2018. Present for the United States: Matt Schutzer and Mitzi Paige. Present for the State of Mississippi: Jim Shelson, Reuben Anderson, and Laura Glaze. During the conference the Court discussed with the parties a variety of discovery disputes that have arisen. The Court ordered the parties to meet and confer in an attempt to reach an agreement regarding each of the disputes. In the event that the parties are unable to resolve the discovery disputes, the Court authorized the parties to file motions pursuant to Section 6.F.4. of the Case Management Order. The Court set a deadline of June 22, 2018, for the parties to file any motions regarding the discovery disputes which were the subject of this telephonic discovery conference. (RBM) (Entered: 06/06/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 12 of 27

06/07/2018 06/07/2018 06/08/2018 06/12/2018 06/22/2018 06/22/2018 06/28/2018
06/29/2018
07/06/2018 07/12/2018 07/18/2018 07/30/2018 08/02/2018 08/03/2018 08/03/2018
08/07/2018
08/07/2018

76 NOTICE of Appearance by Nash E. Gilmore on behalf of The State of Mississippi (Gilmore, Nash) (Entered: 06/07/2018)
77 NOTICE of Withdrawal of Subpoenas by The State of Mississippi re 54 Subpoena Returned, 56 Subpoena Returned, 53 Subpoena Returned (Shelson, James) (Entered: 06/07/2018)
78 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A (Lippincott), # 2 Exhibit B (Kelly), # 3 Exhibit C (Mitchell), # 4 Exhibit D (Lewis))(Holkins−Federal Gov, Patrick) (Entered: 06/08/2018)
79 NOTICE of Service of (Responses to Plaintiff's Amended Third Requests) Response to Request for Production by The State of Mississippi (Shelson, James) (Entered: 06/12/2018)
80 STATUS REPORT by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 06/22/2018)
81 Consent MOTION to Amend/Correct 39 Case Management Order,,,, by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 06/22/2018)
TEXT−ONLY ORDER granting 81 Motion to Amend Case Management Order. The Court sets a deadline of July 30, 2018, for Plaintiff to provide its expert reports related to its review of individuals who were in a State Hospital at any time between October 13, 2015, and October 13, 2017 (also referred to as the "clinical review reports"). NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 6/28/18 (RBM) (Entered: 06/28/2018)
82 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A (Johnson), # 2 Exhibit B (Toten), # 3 Exhibit C (Holloway), # 4 Exhibit D (Windham), # 5 Exhibit E (Hutchins), # 6 Exhibit F (Chastain), # 7 Exhibit G (Allen), # 8 Exhibit H (Carlisle))(Schutzer−Federal Gov, Mathew) (Entered: 06/29/2018)
83 NOTICE of Service of Third Set of Request for Production by The State of Mississippi (Shelson, James) (Entered: 07/06/2018)
84 NOTICE of Service of Fourth Set of Request for Production by The State of Mississippi (Shelson, James) (Entered: 07/12/2018)
85 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A (Matson), # 2 Exhibit B (Jones))(Schutzer−Federal Gov, Mathew) (Entered: 07/18/2018)
86 NOTICE of Service of Designation of Experts by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 07/30/2018)
Set/Reset Hearings: Telephonic Status Conference set for 8/3/2018 at 9:00 AM before District Judge Carlton W. Reeves. Only one attorney per side need participate. Dial−in number will be circulated to counsel directly. (AC) (Entered: 08/02/2018)
Set Hearing: Telephonic Discovery Conference set for 8/7/2018 01:00 PM before Magistrate Judge F. Keith Ball. Counsel for the defendant shall set up the conference and contact the Court at 601−608−4460. (JEJ) (Entered: 08/03/2018)
Minute Entry for proceedings held before District Judge Carlton W. Reeves.PARTICIPANTS: Matthew Shutzer and Reagan Rush, counsel for government; Reuben Anderson and Nash Gilmore, counsel for defendant: Status Conference held on 8/3/2018. The hearing was held to discuss the discovery progress and potential trial days. (TRS) (Entered: 08/03/2018)
TEXT−ONLY ORDER Setting Hearing on Motion 62 MOTION for Order Regarding the Application of Mississippi Rule of Professional Conduct 4.2 : Motion Hearing set for 8/20/2018 02:00 PM in Courtroom 5D (Jackson) Ball before Magistrate Judge F. Keith Ball. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 8/7/18 (RBM) (Entered: 08/07/2018)
87 NOTICE of Service of Supplemental Response to Request for Production by The State of Mississippi (Shelson, James) (Entered: 08/07/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 13 of 27

08/07/2018 08/13/2018 08/15/2018 08/15/2018 08/16/2018
08/17/2018 08/17/2018 08/20/2018 08/20/2018
08/20/2018 08/20/2018
08/20/2018 08/21/2018 08/21/2018

Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Discovery Conference held on 8/7/2018 in Jackson, MS. Appearing: Kristen Hucek, Regan Rush, Mitzi Paige, Ashley McDonald and Jim Shelson. (JEJ) (Entered: 08/13/2018)
88 Unopposed MOTION to Extend Time to Designate Expert Witnesses Deadline by The State of Mississippi (Shelson, James) (Entered: 08/13/2018)
89 NOTICE of Service of Response to Request for Production by United States of America (Hucek−Federal Gov, Kristin) (Entered: 08/15/2018)
90 MOTION to Withdraw as Attorney by United States of America (Hucek−Federal Gov, Kristin) (Entered: 08/15/2018)
TEXT−ONLY ORDER granting 88 Motion to Extend Deadline. The State of Mississippi has up to and including October 12, 2018, to designate its Fed. R. Civ. P. 26(a)(2)(B) experts and to produce their reports. The deadline for the State to designate experts pursuant to Fed. R. Civ. P. 26(a)(2)(C) remains September 28, 2018. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 8/16/18 (RBM) (Entered: 08/17/2018)
91 NOTICE to Take Deposition by The State of Mississippi (Shelson, James) (Entered: 08/17/2018)
TEXT−ONLY ORDER granting 90 Motion to Withdraw as Attorney. Attorney Kristin Elizabeth Hucek−Federal Gov terminated. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 8/17/18 (RBM) (Entered: 08/17/2018)
Reset Deadlines as to 62 MOTION for Order Regarding the Application of Mississippi Rule of Professional Conduct 4.2 . The Motion Hearing set for 8/20/2018 02:00 PM before Magistrate Judge F. Keith Ball will be telephonic. The parties have already been given the necessary call−in information. (RBM) (Entered: 08/20/2018)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Motion Hearing held on 8/20/2018 re 62 MOTION for Order Regarding the Application of Mississippi Rule of Professional Conduct 4.2 filed by United States of America. Present: Deena Fox, Matt Schutzer, Regan Rush, Mitzi Paige, and Jim Shelson. Court Reporter/Transcriber Teri Norton, Telephone Number : 228−563−1748. (RBM) (Entered: 08/20/2018)
Telephonic Status Conference re: Motion 62 set for 8/27/2018 02:00 PM before Magistrate Judge F. Keith Ball. Counsel are to use the same call−in information issued for the 8/20/2018 telephonic motion hearing. Signed by Magistrate Judge F. Keith Ball on 8/20/18 (RBM) (Entered: 08/20/2018)
92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff by The State of Mississippi (Attachments: # 1 Exhibit 1 − ISMICC Report dated 12/13/17 (Part 1 of 5), # 2 Exhibit 1 − ISMICC Report dated 12/13/17 (Part 2 of 5), # 3 Exhibit 1 − ISMICC Report dated 12/13/17 (Part 3 of 5), # 4 Exhibit 1 − ISMICC Report dated 12/13/17 (Part 4 of 5), # 5 Exhibit 1 − ISMICC Report dated 12/13/17 (Part 5 of 5), # 6 Exhibit 2 − Final Report dated Oct 2016, # 7 Exhibit 3 − GAO−15−113, Report to the Subcommittee, # 8 Exhibit 4 − Final Report dated 7/22/03, # 9 Exhibit 5 − Office of the Inspector General, # 10 Exhibit 6 − SAMHSA Strategic Plan, # 11 Exhibit 7 − SAMSHA PowerPoint, # 12 Exhibit 8 − Good Faith Certificate)(Shelson, James) (Entered: 08/20/2018)
93 MEMORANDUM in Support re 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by The State of Mississippi (Shelson, James) (Entered: 08/20/2018)
94 MOTION to Compel Deposition of Dr. Elinore McCance−Katz by The State of Mississippi (Attachments: # 1 Exhibit 1 − ISMICC Report dated 12/13/17, # 2 Exhibit 2 − Good Faith Certificate)(Gilmore, Nash) (Entered: 08/21/2018)
95 MEMORANDUM in Support re 94 MOTION to Compel Deposition of Dr. Elinore McCance−Katz filed by The State of Mississippi (Gilmore, Nash) (Entered: 08/21/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 14 of 27

08/21/2018 08/22/2018 08/22/2018 08/22/2018
08/22/2018 08/23/2018 08/23/2018 08/24/2018 08/28/2018
08/28/2018 08/31/2018 09/04/2018
09/04/2018 09/04/2018
09/04/2018 09/05/2018

96 NOTICE of Service of Response to Request for Production by United States of America (McDonald−Federal Gov, Ashley) (Entered: 08/21/2018)
97 MOTION to Extend Case Management Deadlines and Trial Date Deadline by The State of Mississippi (Gilmore, Nash) (Entered: 08/22/2018)
98 MEMORANDUM in Support re 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline filed by The State of Mississippi (Gilmore, Nash) (Entered: 08/22/2018)
99 MOTION for Protective Order by The State of Mississippi (Attachments: # 1 Exhibit 1 − Plaintiff's Notice of Deposition of Diana Mikula, # 2 Exhibit 2 − Plaintiff's August 6 Letter to Judge Ball, # 3 Exhibit 3 − Good Faith Certificate)(Gilmore, Nash) (Entered: 08/22/2018)
100 MEMORANDUM in Support re 99 MOTION for Protective Order filed by The State of Mississippi (Gilmore, Nash) (Entered: 08/22/2018)
101 RESPONSE in Opposition re 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 08/23/2018)
102 MEMORANDUM in Opposition re 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 08/23/2018)
103 NOTICE of Stipulation by United States of America (Attachments: # 1 Stipulation)(Schutzer−Federal Gov, Mathew) (Entered: 08/24/2018)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Case Status Conference held on 8/27/2018 in Jackson, MS. Appearing: Deena Fox, Matt Schutzer, Regan Rush, Mitzi Paige and James Shelson. (JEJ) (Entered: 08/28/2018)
104 Rebuttal re 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline filed by The State of Mississippi (Gilmore, Nash) (Entered: 08/28/2018)
Set Hearing: Telephonic Status Conference set for 9/5/2018 03:45 PM before Magistrate Judge F. Keith Ball. Counsel for the defendant shall set up the conference and contact the Court at 601−608−4460. (JEJ) (Entered: 08/31/2018)
105 RESPONSE in Opposition re 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by United States of America (Attachments: # 1 Exhibit A − Declaration of Regan Rush, # 2 Exhibit B − Declaration of Constance L. Foster)(McDonald−Federal Gov, Ashley) (Entered: 09/04/2018)
106 MEMORANDUM in Opposition re 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by United States of America (McDonald−Federal Gov, Ashley) (Entered: 09/04/2018)
107 RESPONSE in Opposition re 94 MOTION to Compel Deposition of Dr. Elinore McCance−Katz filed by United States of America (Attachments: # 1 Exhibit A − Letter from M. Schutzer to J. Shelson (July 5, 2018))(Schutzer−Federal Gov, Mathew) (Entered: 09/04/2018)
108 MEMORANDUM in Opposition re 94 MOTION to Compel Deposition of Dr. Elinore McCance−Katz filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 09/04/2018)
109 RESPONSE in Opposition re 99 MOTION for Protective Order filed by United States of America (Attachments: # 1 Exhibit A − States Initial Disclosures, # 2 Exhibit B − Excerpts from Deposition of Steven Allen, # 3 Exhibit C − States First Supplemental Response to United States First Set of Requests for Production, # 4 Exhibit D − Excerpts from Deposition of Kelly Breland, # 5 Exhibit E − Excerpts from Deposition of Brent Hurley, # 6 Exhibit F − Excerpts from Deposition of Marc Lewis, # 7 Exhibit G − Excerpts from Deposition of Jake Hutchins, # 8 Exhibit H − Excerpts from Deposition of Veronica Vaughn, # 9 Exhibit I − Deposition Exhibit 199, # 10 Exhibit J − Excerpts from Deposition of Bo Chastain, # 11 Exhibit K − Excerpts from Deposition of Wendy Bailey)(Schutzer−Federal Gov, Mathew) (Entered: 09/05/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 15 of 27

09/05/2018 09/05/2018 09/06/2018 09/07/2018 09/07/2018 09/10/2018 09/10/2018 09/10/2018 09/10/2018 09/10/2018 09/11/2018
09/11/2018 09/14/2018
09/17/2018
09/17/2018 09/18/2018

110 MEMORANDUM in Opposition re 99 MOTION for Protective Order filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 09/05/2018)
111 NOTICE to Take Deposition of Beverly Bell−Shambley, Daniel Byrne, Robert Drake, Carol Vander−Zwaag, Melodie Peet, Todd MacKenzie, Judith Baldwin, Katherine Burson by The State of Mississippi (Shelson, James) (Entered: 09/05/2018)
112 NOTICE to Take Deposition of Beverly Shambley, Daniel Byrne, and Robert Drake by The State of Mississippi (Shelson, James) (Entered: 09/06/2018)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 9/5/2018 in Jackson, MS. Appearing: Matt Schutzer, Regan Rush, Mitzi Paige and Jim Shelson. (JEJ) Modified on 9/7/2018 (JEJ). (Entered: 09/07/2018)
113 NOTICE to Take Deposition of Beverly Bell−Shambley, Daniel Byrne, and Robert Drake by The State of Mississippi (Shelson, James) (Entered: 09/07/2018)
114 **STRICKEN*** from the court record per Order 119 NOTICE of Appearance by Nikita S. McMillian on behalf of The State of Mississippi (McMillian, Nikita) Modified on 9/11/2018 (ND). (Entered: 09/10/2018)
115 Rebuttal re 94 MOTION to Compel Deposition of Dr. Elinore McCance−Katz filed by The State of Mississippi (Attachments: # 1 Exhibit 1 − Attachment 4 to Expert Robert Drake Report)(Gilmore, Nash) (Entered: 09/10/2018)
116 Rebuttal re 99 MOTION for Protective Order filed by The State of Mississippi (Gilmore, Nash) (Entered: 09/10/2018)
117 Rebuttal re 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by The State of Mississippi (Shelson, James) (Entered: 09/10/2018)
118 Joint MOTION Modify Scheduling Order by United States of America (Rush−Federal Gov, Regan) (Entered: 09/10/2018)
119 ORDER − On September 10, 2018, Nikita S. McMillian entered her appearance in this matter as co−counsel for the defendant. On its own motion, the Court finds that her participation in this case is prohibited by the ethics rules governing former federal law clerks. As a result, her entry of appearance in this case must be and hereby is stricken. Signed by District Judge Carlton W. Reeves on 9/11/2018 (ND) (Entered: 09/11/2018)
120 NOTICE of Appearance by Howard David Clark, III on behalf of The State of Mississippi (Clark, Howard) (Entered: 09/11/2018)
121 Unopposed MOTION for Leave to File Sur−Reply by United States of America (Attachments: # 1 Exhibit A − Proposed Sur−reply Brief, # 2 Exhibit B − United States' Response to Defendant's First Set of Interrogatories, # 3 Exhibit C − United States' Response to Defendant's Third Set of Requests for Production of Documents, # 4 Exhibit D − United States' Second Supplemental Response to Defendant's First Set of Interrogatories)(Schutzer−Federal Gov, Mathew) (Entered: 09/14/2018)
TEXT−ONLY ORDER granting 118 Motion to Amend Case Management Order. The Courts sets the following new deadlines: (1) The State of Mississippi's Rule 26(a)(2)(B) disclosures related to the "clinical review" are due October 29, 2018, (2) Fact discovery closes October 30, 2018, (3) Expert discovery closes December 21, 2018, (4) Dispositive and Daubert−type motions due December 21, 2018, (5) Responses to Dispositive and Daubert−type motions due January 21, 2019, and (6) Rebuttals in support of Dispositive and Daubert−type motions due February 18, 2019. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 9/17/18 (RBM) (Entered: 09/17/2018)
122 NOTICE to Take Deposition of Todd Mackenzie, Carol Vander−Zwaag, and Melodie Peet by The State of Mississippi (Shelson, James) (Entered: 09/17/2018)
TEXT ONLY ORDER granting 121 Unopposed Motion for Leave to File Sur−Reply. NO FURTHER WRITTEN ORDER SHALL ISSUE. Signed by District Judge Carlton W. Reeves on 09/18/2018. (CL) (Entered: 09/18/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 16 of 27

09/24/2018 09/25/2018 09/26/2018 09/27/2018 09/27/2018 09/28/2018 10/10/2018 10/12/2018 10/12/2018 10/19/2018
10/29/2018 11/02/2018 11/07/2018
11/07/2018 11/08/2018 11/13/2018 11/26/2018
11/28/2018 11/30/2018

Set Hearing: Telephone Conference set for 9/26/2018 02:00 PM before Magistrate Judge F. Keith Ball. Counsel for the plaintiff shall set up the conference and contact the Court at 601−608−4460. (JEJ) (Entered: 09/24/2018)
123 REPLY to Response to Motion re 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 09/25/2018)
124 REPLY to Response to Motion re 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by The State of Mississippi (Shelson, James) (Entered: 09/26/2018)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephone Conference held on 9/26/2018 in Jackson, MS. Appearing: Matt Schutzer, Deena Fox, Regan Rush and Jim Shelson. (JEJ) (Entered: 09/27/2018)
125 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A − Crockett, # 2 Exhibit B − Stampley)(Schutzer−Federal Gov, Mathew) (Entered: 09/27/2018)
126 NOTICE of Service of Designation of Experts by The State of Mississippi (Gilmore, Nash) (Entered: 09/28/2018)
127 NOTICE to Take Deposition of Judith Baldwin and Katherine Burson by The State of Mississippi (Shelson, James) (Entered: 10/10/2018)
128 ORDER granting in part and denying in part 62 and 64 Motion for an application of Mississippi Rule of Professional Conduct 4.2. Signed by Magistrate Judge F. Keith Ball on 10/12/18 (RBM) (Entered: 10/12/2018)
129 NOTICE of Service of Expert Reports by The State of Mississippi (Shelson, James) (Entered: 10/12/2018)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Settlement Conference held on 10/16/2018 in Jackson, MS. Appearing: Deena Fox, Regan Rush, Mathew Schutzer, Harold Pizzetta, Jim Shelson, Diana Mikula, Reuben Anderson and Bill Rosamond. (JEJ) (Entered: 10/19/2018)
130 NOTICE of Service of Expert Reports by The State of Mississippi (Shelson, James) (Entered: 10/29/2018)
Set Hearings: Telephonic Status Conference set for 11/7/2018 02:00 PM (CST) before District Judge Carlton W. Reeves. A call−in number will provided to the parties in advance of the call. (CL) (Entered: 11/02/2018)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Telephone Conference held on 11/7/2018. Regan Rush (counsel for Government); James W. Shelson (counsel for Defendant). The Court discussed with the parties discovery related issues and a possible trial date. A tentative trial date has been set for June 4, 2019. ELT: 30 days. (TRS) (Entered: 11/07/2018)
Set Hearings: Bench Trial set for 6/4/2019 09:00 AM in Courtroom 5B (Jackson) Reeves before District Judge Carlton W. Reeves (TRS) (Entered: 11/07/2018)
132 NOTICE of Service of Supplemental Initial Disclosure by The State of Mississippi (Gilmore, Nash) (Entered: 11/08/2018)
133 NOTICE of Service of Amended Expert Report by The State of Mississippi (Gilmore, Nash) (Entered: 11/13/2018)
134 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A (Van), # 2 Exhibit B (Corley), # 3 Exhibit C (Cole), # 4 Exhibit D (Creekmore), # 5 Exhibit E (Morris), # 6 Exhibit F (Lea), # 7 Exhibit G (Cobb))(Schutzer−Federal Gov, Mathew) (Entered: 11/26/2018)
135 Joint MOTION Modify Case Management Order by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 11/28/2018)
136 NOTICE to Take Deposition of Kevin O'Brien by The State of Mississippi (Shelson, James) (Entered: 11/30/2018)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 17 of 27

11/30/2018 12/03/2018 12/03/2018 12/12/2018 12/14/2018 12/14/2018
12/14/2018 12/21/2018 12/21/2018 12/21/2018
12/21/2018
12/21/2018 12/21/2018
12/21/2018 12/21/2018 01/21/2019

137 NOTICE of Service of Designation of Experts by United States of America (Fox−Federal Gov, Deena) (Entered: 11/30/2018)
138 NOTICE of Appearance by Jorge Martin Castillo−Federal Gov on behalf of United States of America (Castillo−Federal Gov, Jorge) (Entered: 12/03/2018)
139 NOTICE of Appearance by Lindsey Weinstock−Federal Gov on behalf of United States of America (Weinstock−Federal Gov, Lindsey) (Entered: 12/03/2018)
140 NOTICE of Service of First Supplemental Response to Interrogatories by The State of Mississippi (Shelson, James) (Entered: 12/12/2018)
141 MOTION to Withdraw as Attorney by United States of America (Mallinson−Federal Gov, Catharine) (Entered: 12/14/2018)
TEXT−ONLY ORDER granting 135 Motion for an extension of Case Management Deadlines. The Court sets a deadline of November 30, 2018, for the United States to serve its expert rebuttal report, and a deadline of December 21, 2018, for any depositions of rebuttal experts. Notwithstanding the close of expert discovery on December 21, 2018, the Court sets a deadline of January 10, 2019, for the United States to depose the States expert, Dr. Jeffrey Geller. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 12/14/18 (RBM) (Entered: 12/16/2018)
TEXT−ONLY ORDER granting 141 Motion to Withdraw as Attorney. Attorney Catharine Adrienne Mallinson−Federal Gov terminated. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 12/14/18 (RBM) (Entered: 12/16/2018)
142 MOTION for Summary Judgment for Lack of Standing by The State of Mississippi (Gilmore, Nash) (Entered: 12/21/2018)
143 MEMORANDUM in Support re 142 MOTION for Summary Judgment for Lack of Standing filed by The State of Mississippi (Gilmore, Nash) (Entered: 12/21/2018)
144 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A − Lutterman, # 2 Exhibit B − Fowdur, # 3 Exhibit C − Harris, # 4 Exhibit D − Lippincott, # 5 Exhibit E − Lamousin, # 6 Exhibit F − Maddux, # 7 Exhibit G − Reeves, # 8 Exhibit H − Wilkerson)(Schutzer−Federal Gov, Mathew) (Entered: 12/21/2018)
145 MOTION for Summary Judgment (Reasonable Modifications) by The State of Mississippi (Attachments: # 1 Exhibit 1 − Second Supplemental Responses, # 2 Exhibit 2 − Peet Report, # 3 Exhibit 3 − O'Brien Report, # 4 Exhibit 4 − Peet Depo, # 5 Exhibit 5 − Burson Depo, # 6 Exhibit 6 − Bell−Shambley Depo, # 7 Exhibit 7 − Drake Depo, # 8 Exhibit 8 − VanderZwaag Depo, # 9 Exhibit 9 − Drake Report, # 10 Exhibit 10 − Baldwin Depo)(Shelson, James) (Entered: 12/21/2018)
146 MEMORANDUM in Support re 145 MOTION for Summary Judgment (Reasonable Modifications) filed by The State of Mississippi (Shelson, James) (Entered: 12/21/2018)
147 MOTION to Exclude Expert Testimony of Plaintiff's Clinical Review Team by The State of Mississippi (Attachments: # 1 Exhibit 1 − Drake Report, # 2 Exhibit 2 − Bell−Shambley Depo, # 3 Exhibit 3 − Byrne Depo, # 4 Exhibit 4 − Drake Depo, # 5 Exhibit 5 − Baldwin Depo, # 6 Exhibit 6 − Burson Depo)(Shelson, James) (Entered: 12/21/2018)
148 MEMORANDUM in Support re 147 MOTION to Exclude Expert Testimony of Plaintiff's Clinical Review Team filed by The State of Mississippi (Shelson, James) (Entered: 12/21/2018)
149 Unopposed MOTION to Seal Exhibits by The State of Mississippi (Gilmore, Nash) (Entered: 12/21/2018)
150 RESPONSE in Opposition re 147 MOTION to Exclude Expert Testimony of Plaintiff's Clinical Review Team filed by United States of America (Attachments: # 1 Exhibit A − Maddux (May 7, 2018) Deposition, # 2 Exhibit B − DMH FY18 Annual Report, MS−00145948c, # 3 Exhibit C − Expert Report of Katherine Burson, # 4 Exhibit D −

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 18 of 27

01/21/2019 01/21/2019
01/21/2019 01/21/2019 01/21/2019 01/21/2019 01/28/2019 01/28/2019

Expert Report of Dr. Beverly Bell−Shambley, # 5 Exhibit E − Lamousin Deposition, # 6 Exhibit F − Expert Report of Dr. Philip Meredith, # 7 Exhibit G − Expert Report of Daniel Byrne, # 8 Exhibit H − Bell−Shambley Deposition, # 9 Exhibit I − Expert Report of Dr. Carol VanderZwaag, # 10 Exhibit J − State's Designation of Non−Retained Expert Witnesses, # 11 Exhibit K − Maddux (Nov. 28, 2018) Deposition, # 12 Exhibit L − Expert Report of Dr. Judith Baldwin, # 13 Exhibit M − Expert Report of Dr. Robert Drake, # 14 Exhibit N − VanderZwaag Deposition, # 15 Exhibit O − Baldwin Deposition, # 16 Exhibit P − Burson Deposition, # 17 Exhibit Q − Byrne Deposition, # 18 Exhibit R − Drake Deposition, # 19 Exhibit S − Mississippi Expands PACT Teams, MS−00004797, # 20 Exhibit T − Day Deposition, # 21 Exhibit U − Vaughn Deposition, # 22 Exhibit V − Allen Deposition, # 23 Exhibit W − Expert Report of Dr. Jeffrey Geller, # 24 Exhibit X − Findings Letter)(Schutzer−Federal Gov, Mathew) (Entered: 01/21/2019)
151 MEMORANDUM in Opposition re 147 MOTION to Exclude Expert Testimony of Plaintiff's Clinical Review Team filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 01/21/2019)
152 RESPONSE in Opposition re 145 MOTION for Summary Judgment (Reasonable Modifications) filed by United States of America (Attachments: # 1 Exhibit 1 − United States' 2d Supplemental Response to State's 1st Interrogatories, # 2 Exhibit 2 − Peet Deposition, # 3 Exhibit 3 − Expert Report of Melodie Peet, # 4 Exhibit 4 − Expert Report of Dr. Robert Drake, # 5 Exhibit 5 − Drake Deposition, # 6 Exhibit 6 − DMH Operational Standards, USDOJ−0000818, # 7 Exhibit 7 − Toten Deposition, # 8 Exhibit 8 − Windham Deposition, # 9 Exhibit 9 − DMH FY 2018 Performance Measures, MS−00017889, # 10 Exhibit 10 − Hutchins Deposition, # 11 Exhibit 11 − DMH FY 2018 Annual Report, MS−00145948c, # 12 Exhibit 12 − Maddux Deposition, # 13 Exhibit 13 − Harris Deposition, # 14 Exhibit 14 − Allen Deposition, # 15 Exhibit 15 − Chastain Deposition, # 16 Exhibit 16 − Carlisle Deposition, # 17 Exhibit 17 − Day Deposition, # 18 Exhibit 18 − Bailey Deposition, # 19 Exhibit 19 − Mississippi Expands PACT Teams, MS−00004797, # 20 Exhibit 20 − Vaughn Deposition, # 21 Exhibit 21 − DMH FY2016−FY2018 End of Year Progress Report, USDOJ−00001475, # 22 Exhibit 22 − DMH FY2017−2019 Strategic Plan, USDOJ−0001475, # 23 Exhibit 23 − EMSH cost and length of stay data, MS−00023197, # 24 Exhibit 24 − MSH cost and length of stay data, MS−ROGS−144, # 25 Exhibit 25 − NMSH cost and length of stay data, MS−ROGS−162, # 26 Exhibit 26 − SMSH cost and length of stay data, MS−ROGS−166, # 27 Exhibit 27 − Revised Expert Report of Kevin O'Brien, # 28 Exhibit 28 − Breland Deposition, # 29 Exhibit 29 − Berkeley Research Group Analyses for Systems Expert, USDOJ−0008432, # 30 Exhibit 30 − 2017 DOM fee−for−service claims data, MS−00145980, # 31 Exhibit 31 − DMH FY2017 Annual Report, USDOJ−0006168, # 32 Exhibit 32 − 2017 DMH grant distributions, MS−00043898, # 33 Exhibit 33 − 2017 Magnolia claims data, MS−00145581, # 34 Exhibit 34 − 2017 UHC claims data, MS−00145583, # 35 Exhibit 35 − DMH FY18 End−of−Year Progress Report, MS−00145948d)(Holkins−Federal Gov, Patrick) (Entered: 01/21/2019)
153 MEMORANDUM in Opposition re 145 MOTION for Summary Judgment (Reasonable Modifications) filed by United States of America (Holkins−Federal Gov, Patrick) (Entered: 01/21/2019)
154 RESPONSE in Opposition re 142 MOTION for Summary Judgment for Lack of Standing filed by United States of America (Castillo, Jorge) (Entered: 01/21/2019)
155 MEMORANDUM in Opposition re 142 MOTION for Summary Judgment for Lack of Standing filed by United States of America (Castillo, Jorge) (Entered: 01/21/2019)
156 MOTION for Leave to File Document Under Seal by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 01/21/2019)
Set Hearings: Telephone Conference set for 2/4/2019 10:30 AM before District Judge Carlton W. Reeves (TRS) (Entered: 01/28/2019)
TEXT ONLY ORDER granting 149 Motion to Seal; granting 156 Motion to Seal. Each party shall deliver to the Clerk of the Court the exhibits referenced in their respective motions. The exhibits shall be filed under restricted access by the Clerk of the Court. Signed by District Judge Carlton W. Reeves on 1/28/2019. NO FURTHER WRITTEN ORDER SHALL ISSUE ON THESE MOTIONS. (CL) (Entered:

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 19 of 27

01/31/2019 01/31/2019
02/01/2019 02/01/2019
02/01/2019 02/01/2019
02/01/2019 02/01/2019 02/04/2019
02/04/2019 02/13/2019
02/14/2019 02/18/2019 02/18/2019 02/18/2019

01/28/2019)
157 NOTICE OF CONVENTIONAL FILING filed by The State of Mississippi. (ND) (Entered: 01/31/2019)
158 Sealed Documents in RE: 157 Notice of Conventional Filing filed by The State of Mississippi and 147 MOTION to Exclude Expert Testimony of Plaintiff's Clinical Review Team filed by The State of Mississippi (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(ND) (Entered: 01/31/2019)
159 NOTICE OF CONVENTIONAL FILING filed by The State of Mississippi. (ND) (Entered: 02/01/2019)
160 Sealed Documents in RE: 159 Notice of Conventional Filing filed by The State of Mississippi and 145 MOTION for Summary Judgment (Reasonable Modifications) filed by The State of Mississippi. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10)(ND) (Entered: 02/01/2019)
161 NOTICE OF CONVENTIONAL FILING filed by United States of America. (ND) (Entered: 02/01/2019)
162 Sealed Documents in RE: 150 Response in Opposition to Motion filed by United States of America and in re 161 Notice of Conventional Filing filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J, # 9 Exhibit K, # 10 Exhibit L, # 11 Exhibit M)(ND) (Entered: 02/01/2019)
163 NOTICE OF CONVENTIONAL FILING filed by United States of America. (ND) (Entered: 02/01/2019)
164 Sealed Documents in RE: 152 Response in Opposition to Motion filed by United States of America and 163 Notice of Conventional Filing filed by United States of America. (Attachments: # 1 Exhibit 4, # 2 Exhibit 33, # 3 Exhibit 34)(ND) (Entered: 02/01/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Telephone Conference held on 2/4/2019. PARTICIPANTS: Matthew Schutzer, Regan Rush, and Mitzi Dease Paige, DOJ; Reuben V. Anderson and James W. Shelson. The parties discussed with the Court the status of the case in light of an upcoming trial. A Pretrial Conference was set for May 14, 2019 at 10:00 AM. (TRS) (Entered: 02/04/2019)
Set Hearings: Pretrial Conference set for 5/14/2019 10:00 AM in Courtroom 5B (Jackson) Reeves before District Judge Carlton W. Reeves (TRS) (Entered: 02/04/2019)
TEXT−ONLY ORDER setting Telephonic Status Conference for 2/19/2019 03:00 PM before Magistrate Judge F. Keith Ball re: Motions 92 , 94 , 97 , and 99 . Counsel for the United States shall set up the call and contact the undersigned's chambers at (601)608−4460 once all attorneys are on the line. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 2/13/19 (RBM) (Entered: 02/13/2019)
Reset Telephonic Status Conference for 2/20/2019 11:00 AM before Magistrate Judge F. Keith Ball re: Motions 92 , 94 , 97 , and 99 . Counsel for the United States shall set up the call and contact the undersigned's chambers at (601)608−4460 once all attorneys are on the line. (RBM) (Entered: 02/14/2019)
165 Rebuttal re 142 MOTION for Summary Judgment for Lack of Standing filed by The State of Mississippi (Gilmore, Nash) (Entered: 02/18/2019)
166 Rebuttal re 145 MOTION for Summary Judgment (Reasonable Modifications) filed by The State of Mississippi (Shelson, James) (Entered: 02/18/2019)
167 Rebuttal re 147 MOTION to Exclude Expert Testimony of Plaintiff's Clinical Review Team filed by The State of Mississippi (Attachments: # 1 Exhibit 1 − Report of Katherine Burson (to be filed under seal), # 2 Exhibit 2 − literature review, # 3 Exhibit

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 20 of 27

02/18/2019 02/18/2019 02/19/2019 02/20/2019 02/20/2019 02/21/2019 02/26/2019 03/01/2019 03/04/2019 03/04/2019
03/05/2019
03/18/2019

3 − SAMHSA Uniform Reporting System)(Shelson, James) (Entered: 02/18/2019)
168 Unopposed MOTION to RESTRICT from public : Document 167 Rebuttal, (Motion to File Exhibit Under Seal) by The State of Mississippi (Gilmore, Nash) (Entered: 02/18/2019)
169 NOTICE of Withdrawal of Motion for Protective Order by The State of Mississippi re 99 MOTION for Protective Order (Shelson, James) (Entered: 02/18/2019)
170 STIPULATION Regarding Supplementation of Discovery Responses & Pre−Trial Matters by United States of America (Attachments: # 1 Exhibit 1 − Pre−Trial Schedule)(Schutzer−Federal Gov, Mathew) (Entered: 02/19/2019)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Telephonic Status Conference held on 2/20/2019. Appearances: Mathew Schutzer, Ashley McDonald, Mitzi Paige, Mary Boham, Thompson Foster, Sherine Hargrove, Jim Shelson, Nash Gilmore. (RBM) (Entered: 02/20/2019)
TEXT−ONLY ORDER finding as moot 99 Motion for Protective Order. Pursuant to the parties' stipulations 170 and the State of Mississippi's representations to the Court at the telephonic case status conference held on February 20, 2019, this motion is moot. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 2/20/19 (RBM) (Entered: 02/20/2019)
Set Deadlines as to 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline , 94 MOTION to Compel Deposition of Dr. Elinore McCance−Katz, 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff. Motion Hearing set for 3/4/2019 02:30 PM in Courtroom 5D (Jackson) Ball before Magistrate Judge F. Keith Ball. (RBM) (Entered: 02/21/2019)
RESET (TIME CHANGE ONLY) as to 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline, 94 MOTION to Compel Deposition of Dr. Elinore McCance−Katz, 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff. Motion Hearing reset for 3/4/2019 10:30 AM in Courtroom 5D (Jackson) Ball before Magistrate Judge F. Keith Ball. (JEJ) (Entered: 02/26/2019)
171 NOTICE of Supplemental Authority by United States of America re 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff (Rush−Federal Gov, Regan) (Entered: 03/01/2019)
172 ORDER denying 92 Motion to Compel; denying 94 Motion to Compel; denying as moot 97 Motion to Extend Deadline. Signed by Magistrate Judge F. Keith Ball on 3/4/19 (RBM) (Entered: 03/04/2019)
Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Motion Hearing held on 3/4/2019 re 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline filed by The State of Mississippi, 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by The State of Mississippi, 90 MOTION to Withdraw as Attorney filed by United States of America. Present: Mathew Schutzer, Ashley McDonald, Regan Rush, Mitzi Paige, Jim Shelson, and Nash Gilmore. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (RBM) (Entered: 03/04/2019)
173 EXHIBIT "D1" by The State of Mississippi in re 03/04/2019 Minute Entry for proceedings held before Magistrate Judge F. Keith Ball: Motion Hearing held on 3/4/2019 re 97 MOTION to Extend Case Management Deadlines and Trial Date Deadline filed by The State of Mississippi, 92 MOTION to Compel Rule 30(b)(6) Deposition of Plaintiff filed by The State of Mississippi, 90 MOTION to Withdraw as Attorney filed by United States of America. Present: Mathew Schutzer, Ashley McDonald, Regan Rush, Mitzi Paige, Jim Shelson, and Nash Gilmore. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (ND) (Entered: 03/05/2019)
174 MOTION for Review of Magistrate Judge Order re 172 Order on Motion to Compel,, Order on Motion to Extend Deadline by The State of Mississippi (Attachments: # 1 Exhibit 1 − Motion Hearing Transcript)(Gilmore, Nash) (Entered: 03/18/2019)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 21 of 27

04/01/2019
04/01/2019 04/04/2019 04/05/2019 04/05/2019 04/05/2019 04/05/2019 04/12/2019 04/12/2019 04/16/2019 04/16/2019 04/18/2019 04/18/2019 04/22/2019
04/22/2019 04/22/2019 04/24/2019 04/24/2019
04/26/2019

175 Response in Opposition re 174 MOTION for Review of Magistrate Judge Order re 172 Order on Motion to Compel,, Order on Motion to Extend Deadline by The State of Mississippi (Attachments: # 1 Exhibit 1 − Motion Hearing Transcript)(Gilmore, Nash) filed by United States of America (McDonald−Federal Gov, Ashley) (Entered: 04/01/2019)
176 MEMORANDUM IN OPPOSITION re 174 MOTION for Review of Magistrate Judge Order re 172 Order on Motion to Compel,, Order on Motion to Extend Deadline filed by United States of America (McDonald−Federal Gov, Ashley) (Entered: 04/01/2019)
177 Joint MOTION to Modify Scheduling Order by United States of America (Holkins−Federal Gov, Patrick) (Entered: 04/04/2019)
178 ORDER granting 177 Joint Motion to Modify Scheduling Order. Signed by Magistrate Judge F. Keith Ball on 4/5/19 (RBM) (Entered: 04/05/2019)
179 MOTION in Limine by The State of Mississippi (Gilmore, Nash) (Entered: 04/05/2019)
180 MEMORANDUM in Support re 179 MOTION in Limine filed by The State of Mississippi (Gilmore, Nash) (Entered: 04/05/2019)
181 Rebuttal re 174 MOTION for Review of Magistrate Judge Order re 172 Order on Motion to Compel,, Order on Motion to Extend Deadline filed by The State of Mississippi (Shelson, James) (Entered: 04/05/2019)
182 RESPONSE in Opposition re 179 MOTION in Limine filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 04/12/2019)
183 MEMORANDUM in Opposition re 179 MOTION in Limine filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 04/12/2019)
184 NOTICE of Receipt of Deposition by United States of America (Attachments: # 1 Exhibit A (Mikula))(Schutzer−Federal Gov, Mathew) (Entered: 04/16/2019)
185 NOTICE of Appearance by Van Erem Haley−Federal Gov on behalf of United States of America (Haley−Federal Gov, Van Erem) (Entered: 04/16/2019)
186 Unopposed MOTION to Amend/Correct 178 Order on Motion for Miscellaneous Relief by The State of Mississippi (Shelson, James) (Entered: 04/18/2019)
187 Rebuttal re 179 MOTION in Limine filed by The State of Mississippi (Shelson, James) (Entered: 04/18/2019)
TEXT−ONLY ORDER granting 186 Motion to Amend/Correct. The Court sets a deadline of April 22, 2019, for the parties to file with the Court joint exhibit lists and joint stipulations. NO FURTHER WRITTEN ORDER TO ISSUE FROM THE COURT. Signed by Magistrate Judge F. Keith Ball on 4/22/19 (RBM) (Entered: 04/22/2019)
188 NOTICE of Filing of Exhibit Lists by United States of America (Attachments: # 1 Attachment A − Joint Exhibit List, # 2 Attachment B − Expert Materials List)(Schutzer−Federal Gov, Mathew) (Entered: 04/22/2019)
189 STIPULATION by United States of America (Attachments: # 1 Attachment Trial Stipulations, # 2 Exhibit 1 − Recommendations of Clinical Review Team regarding housing)(Schutzer−Federal Gov, Mathew) (Entered: 04/22/2019)
190 ORDER denying 174 Motion to Review Magistrate Judge's Order. Signed by District Judge Carlton W. Reeves on 4/24/2019. (CL) (Entered: 04/24/2019)
TEXT ONLY ORDER granting 168 Unopposed Motion to Seal/Restrict Document. Defendant shall deliver to the Clerk of the Court the exhibit referenced in the motion. The exhibit shall be filed under restricted access by the Clerk of the Court. Signed by District Judge Carlton W. Reeves on 4/24/2019. NO FURTHER WRITTEN ORDER SHALL ISSUE ON THIS MOTION. (CL) (Entered: 04/24/2019)
191 *RESTRICTED* DOCUMENT − Exhibit 1 to 167 Rebuttal, filed by The State of Mississippi. (KNS) (Entered: 04/26/2019)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 22 of 27

04/26/2019 04/30/2019 04/30/2019 04/30/2019 04/30/2019 05/01/2019 05/03/2019 05/03/2019 05/07/2019
05/07/2019 05/07/2019 05/08/2019
05/08/2019
05/09/2019
05/13/2019 05/13/2019 05/14/2019

192 NOTICE of Appearance by LaToya C. Merritt on behalf of The State of Mississippi (Merritt, LaToya) (Entered: 04/26/2019)
193 MOTION in Limine (General) by The State of Mississippi (Gilmore, Nash) (Entered: 04/30/2019)
194 MEMORANDUM in Support re 193 MOTION in Limine (General) filed by The State of Mississippi (Gilmore, Nash) (Entered: 04/30/2019)
195 MOTION in Limine (General) by The State of Mississippi (Gilmore, Nash) (Entered: 04/30/2019)
196 MEMORANDUM in Support re 195 MOTION in Limine (General) filed by The State of Mississippi (Gilmore, Nash) (Entered: 04/30/2019)
197 MOTION to RESTRICT from public : Document 196 Memorandum in Support of Motion, 195 MOTION in Limine (General) by The State of Mississippi (Gilmore, Nash) (Entered: 05/01/2019)
198 NOTICE of Filing of Exhibit List by United States of America (Attachments: # 1 Attachment USA Exhibit List with Objections)(Schutzer−Federal Gov, Mathew) (Entered: 05/03/2019)
199 NOTICE of Filing Exhibit List by The State of Mississippi (Attachments: # 1 Exhibit Exhibit 1 − 2019.05.03 State's Core Exhibit List (USA Objections to State))(Shelson, James) (Entered: 05/03/2019)
200 RESPONSE in Opposition re 195 MOTION in Limine (General) filed by United States of America (Attachments: # 1 Exhibit 1 − United States Second Request for Production of Documents (under seal), # 2 Exhibit 2 − United States Initial Disclosures, # 3 Exhibit 3 − States Initial Disclosures, # 4 4 − States Witness List (under seal))(Schutzer−Federal Gov, Mathew) (Entered: 05/07/2019)
201 MEMORANDUM in Opposition re 195 MOTION in Limine (General) filed by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 05/07/2019)
202 MOTION for Leave to File Document RESTRICTED from public by United States of America (Schutzer−Federal Gov, Mathew) (Entered: 05/07/2019)
TEXT ONLY ORDER finding as moot 197 Unopposed Motion to Seal/Restrict Document. Unredacted copies of Docket Nos. 195, 196 have already been filed on the docket under seal at Docket Nos. 193, 194. Signed by District Judge Carlton W. Reeves on 5/8/2019. NO FURTHER WRITTEN ORDER SHALL ISSUE ON THIS MOTION. (CL) (Entered: 05/08/2019)
TEXT ONLY ORDER granting 202 Unopposed Motion for Leave to File Document Under Restricted Access. Plaintiff shall contact the Clerk of the Court to ensure the memorandum and exhibits are filed under restricted access. Signed by District Judge Carlton W. Reeves on 5/8/2019. NO FURTHER WRITTEN ORDER SHALL ISSUE ON THIS MOTION. (CL) (Entered: 05/08/2019)
203 *RESTRICTED* DOCUMENT: United States' Response Memorandum in Opposition to 195 MOTION in Limine (General) filed by The State of Mississippi and 196 Memorandum in Support of Motion filed by The State of Mississippi. (Attachments: # 1 Exhibit 1, # 2 Exhibit 4)(ND) (Entered: 05/09/2019)
204 ORDER denying 142 Motion for Summary Judgment; denying 145 Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 5/13/2019. (CL) (Entered: 05/13/2019)
205 ORDER denying 147 Motion to Exclude. Signed by District Judge Carlton W. Reeves on 5/13/2019. (CL) (Entered: 05/13/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Pretrial Conference held on 5/14/2019. APPEARANCES: Matthew Schutzer, Deena Fox, Patrick Holkins, Regan Rush, Mitzi Dease Paige (Government's counsel); James Shelson, Reuben V. Anderson, Mary Jo Woods, Harold Pizzetta (Defense counsel). The case did not settle. Bench Trial scheduled for June 4, 2019 at 9:00 AM. Court Reporter/Transcriber Brenda Wolverton, Telephone Number : 601−608−4188.

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 23 of 27

05/28/2019 05/29/2019 05/29/2019 05/29/2019 05/30/2019
05/30/2019
05/30/2019 05/30/2019
05/31/2019 06/01/2019 06/03/2019 06/04/2019
06/05/2019 06/05/2019
06/06/2019

(TRS) (Entered: 05/31/2019)
206 NOTICE of Appearance by Jessica Elyse Polansky−Federal Gov on behalf of United States of America (Polansky−Federal Gov, Jessica) (Entered: 05/28/2019)
207 Unopposed MOTION to RESTRICT from public Exhibit 1 to Trial Stipulations [Dkt. 189−1] by The State of Mississippi (Gilmore, Nash) (Entered: 05/29/2019)
208 TRIAL BRIEF by The State of Mississippi (Attachments: # 1 Exhibit 1 − Amicus Brief, # 2 Exhibit 2 − Article, # 3 Exhibit 3 − Statement of Department of Justice, # 4 Exhibit 4 − United States' Statement)(Shelson, James) (Entered: 05/29/2019)
209 TRIAL BRIEF by United States of America (Fox−Federal Gov, Deena) (Entered: 05/29/2019)
TEXT ONLY ORDER granting 207 Unopposed Motion to Restrict. Defendant shall contact the Clerk of the Court to ensure the exhibit is filed under restricted access. Signed by District Judge Carlton W. Reeves on 5/30/2019. NO FURTHER WRITTEN ORDER SHALL ISSUE ON THIS MOTION. (CL) (Entered: 05/30/2019)
210 ORDER addressing certain issues related to members of the press. The Court has received inquiries from the press regarding access to trial beginning on June 4, 2019. In an effort to accommodate those requests, and to ensure an orderly proceeding that is open to the public, the Court adopts the press policy as stated in the Order. Signed by District Judge Carlton W. Reeves on 5/30/2019. (Exhibit #1: Declaration). (CL) (Entered: 05/30/2019)
211 NOTICE OF CONVENTIONAL FILING in re 189 Stipulation and 207 Unopposed MOTION to RESTRICT from public Exhibit 1 to Trial Stipulations [Dkt. 189−1] filed by The State of Mississippi. (ND) (Entered: 05/30/2019)
212 *RESTRICTED* DOCUMENT: Exhibit 1 − Recommendations of Clinical Review Team regarding housing in re 189 Stipulation filed by United States of America and 211 Notice of Conventional Filing filed by The State of Mississippi. (ND) (Entered: 05/30/2019)
213 Joint MOTION Pre−Admit Exhibits by United States of America (Attachments: # 1 Attachment A − Joint Proposed Pre−Admitted Exhibits)(Schutzer−Federal Gov, Mathew) (Entered: 05/31/2019)
214 NOTICE of Appearance by Maureen Johnston−Federal Gov on behalf of United States of America (Johnston−Federal Gov, Maureen) (Entered: 06/01/2019)
215 ORDER granting 213 Joint MOTION Pre−Admit Exhibits. Signed by District Judge Carlton W. Reeves on 6/3/2019. (CL) (Entered: 06/03/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial began on June 4, 2019. Court Reporter/Transcriber: Cherie Bond (601) 608−4186 (morning) and Brenda Wolverton (601) 608−4188 (afternoon). (SP) Modified on 9/9/2019 (TRS). (Entered: 06/04/2019)
216 NOTICE of Appearance by Sarah Teresa Russo−Federal Gov on behalf of United States of America (Russo−Federal Gov, Sarah) (Entered: 06/05/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held/continued on June 5, 2019. Court Reporter/Transcriber: Cherie Bond (601) 608−4186 (morning) and Brenda Wolverton (601) 608−4188 (afternoon). (SP) (Entered: 06/05/2019)
TEXT ONLY ORDER withdrawing 179 Motion in Limine; withdrawing in part and granting in part 193 195 Motion in Limine. As stated on the record on 6/4/2019, plaintiff's failure to previously disclose the names of witnesses may be cured by making the witnesses available to defendant for questioning before the witnesses testify at trial. Defendant has withdrawn all other requests for relief within the motions. Signed by District Judge Carlton W. Reeves on 6/6/2019. NO FURTHER WRITTEN ORDER SHALL ISSUE ON THESE MOTIONS. (CL) (Entered: 06/06/2019)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 24 of 27

06/06/2019 06/06/2019 06/10/2019 06/11/2019 06/12/2019 06/13/2019 06/14/2019 06/17/2019 06/17/2019 06/19/2019 06/19/2019 06/20/2019 06/24/2019 06/24/2019
06/24/2019 06/24/2019

217 PRETRIAL ORDER. Signed by District Judge Carlton W. Reeves on 6/6/2019. (Attachments: Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4). (CL) (Entered: 06/06/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held/continued on June 6, 2019. Court Reporter/Transcriber: Cherie Bond (601) 608−4186. (SP) (Entered: 06/06/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/10/2019. Court Reporter/Transcriber Brenda Wolverton, Telephone Number: 601−608−4188 (morning); Cherie Bond, Telephone Number: 601−608−4186 (afternoon). (TRS) (Entered: 06/11/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/11/2019. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186 (morning); Brenda Wolverton, Telephone Number: 601−608−4188 (afternoon). (TRS) (Entered: 06/11/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/12/2019. Court Reporter/Transcriber Brenda Wolverton, Telephone Number: 601−608−4180 (morning); Cherie Bond, Telephone Number: 601−608−4186 (afternoon). (TRS) (Entered: 06/12/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/13/2019. Court Reporter/Transcriber Cherie Bond, Telephone Number: 601−608−4186 (morning); Brenda Wolverton, Telephone Number: 601−608−4188 (afternoon). (TRS) (Entered: 06/13/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/14/2019. Court Reporter/Transcriber Brenda Wolverton, Telephone Number : 601−608−4188. (TRS) (Entered: 06/14/2019)
218 TRIAL BRIEF Regarding Admissibility of Post−December 31, 2018 Events by The State of Mississippi (Attachments: # 1 Exhibit A − Trial Exhibit DX−12)(Shelson, James) (Entered: 06/17/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/17/2019 Court Reporter/Transcriber Brenda Wolverton, Telephone Number: 601−608−4188 (morning); Cherie Bond, Telephone Number: 601−608−4186 (afternoon). (TRS) (Entered: 06/17/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/19/2019. The Government rested. Court Reporter/Transcriber Brenda Wolverton, Telephone Number: 601−608−4188 (morning); Cherie Bond, Telephone Number: 601−608−4186. (TRS) (Entered: 06/19/2019)
219 NOTICE of Appearance by Matthew Donnelly−Federal Gov on behalf of United States of America (Donnelly−Federal Gov, Matthew) (Entered: 06/19/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/20/2019. Bench Trial will resume on Monday, June 24, 2019 at 9:00 AM. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (TRS). (Entered: 06/21/2019)
220 NOTICE of Appearance by Mark N. Halbert on behalf of The State of Mississippi (Halbert, Mark) (Entered: 06/24/2019)
221 **ERROR DISREGARD**ORDER REASSIGNING CASE UPON CONSENT. Case reassigned to Magistrate Judge Linda R. Anderson for all further proceedings. District Judge Carlton W. Reeves no longer assigned to case Signed by District Judge Carlton W. Reeves on 6/24/19 (TRS) Modified on 6/24/2019 (ND). (Main Document 221 replaced on 6/24/2019) (ND). (Entered: 06/24/2019)
DOCKET ANNOTATION as to # 221 . Chambers advises that there is an error in this entry, and it should be disregarded. (ND) (Entered: 06/24/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/24/2019 Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (TRS) (Entered: 06/24/2019)

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 25 of 27

06/25/2019 06/26/2019 06/27/2019 07/01/2019
07/01/2019 07/02/2019 07/03/2019 07/03/2019 07/08/2019
07/10/2019
07/10/2019 07/10/2019 07/11/2019 07/12/2019

Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/25/2019. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (TRS) (Entered: 06/25/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/26/2019. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (TRS) (Entered: 06/26/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial held on 6/27/2019. Defense rested. The Bench Trial will resume on Monday, July 1, 2019 with closing arguments. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (TRS) (Entered: 06/27/2019)
Minute Entry for proceedings held before District Judge Carlton W. Reeves: Bench Trial completed on 7/1/2019. The court heard closing arguments. The parties were directed to submit their Proposed Findings of Fact and Conclusion of Law on July 22, 2019 by 11:59 PM−CST. Court Reporter/Transcriber Cherie Bond, Telephone Number : 601−608−4186. (TRS) (Entered: 07/01/2019)
222 MOTION for Leave to File Document RESTRICTED from public by United States of America (Attachments: # 1 Attachment A − Exhibits Under Seal, # 2 Attachment B − Redacted Exhibits)(Schutzer−Federal Gov, Mathew) (Entered: 07/01/2019)
223 Unopposed MOTION for Leave to File Document RESTRICTED from public by The State of Mississippi (Gilmore, Nash) (Entered: 07/02/2019)
224 USA Witness List by United States of America (TRS) (Entered: 07/03/2019)
225 Defendant's Witness List by The State of Mississippi (TRS) (Entered: 07/03/2019)
TEXT ONLY ORDER granting 222 Motion for Leave to File Document Under Seal or Restricted; granting 223 Motion for Leave to File Document Under Seal or Restricted. The exhibits will be filed as requested by the parties. Signed by District Judge Carlton W. Reeves on 7/8/2019. NO FURTHER WRITTEN ORDERS SHALL ISSUE ON THESE MOTIONS. (CL) (Entered: 07/08/2019)
226 DEFENDANT'S Exhibit List by The State of Mississippi. (Attachments: # 1 Exhibit D−1, # 2 Exhibit D−2, # 3 Exhibit D−3, # 4 Exhibit D−4, # 5 Exhibit D−5, # 6 Exhibit D−6, # 7 Exhibit D−7, # 8 Exhibit D−8, # 9 Exhibit D−9, # 10 Exhibit D−10, # 11 Exhibit D−11, # 12 Exhibit D−12, # 13 Exhibit D−25, # 14 Exhibit D−138, # 15 Exhibit D−142, # 16 Exhibit D−179, # 17 Exhibit D−184, # 18 Exhibit D−185, # 19 Exhibit D−186, # 20 Exhibit D−190, # 21 Exhibit D−195, # 22 Exhibit D−235, # 23 Exhibit D−239, # 24 Exhibit D−249, # 25 Exhibit D−250, # 26 Exhibit D−251, # 27 Exhibit D−253, # 28 Exhibit D−256, # 29 Exhibit D−259, # 30 Exhibit D−269, # 31 Exhibit D−276, # 32 Exhibit D−282, # 33 Exhibit D−289, # 34 Exhibit D−290, # 35 Exhibit D−293, # 36 Exhibit D−301, # 37 Exhibit D−302, # 38 Exhibit D−304, # 39 Exhibit D−310, # 40 Exhibit D−320, # 41 Exhibit D−321, # 42 Exhibit D−324, # 43 Exhibit D−325, # 44 Exhibit D−326, # 45 Exhibit D−327, # 46 Exhibit D−328, # 47 Exhibit D−329, # 48 Exhibit D−330, # 49 Exhibit D−331)(TRS) (Entered: 07/10/2019)
227 DEFENDANT'S EXHIBITS (SEALED) (Attachments: # 1 Exhibit D−303 SEALED, # 2 Exhibit D−305 SEALED, # 3 Exhibit D−306 SEALED, # 4 Exhibit D−307 SEALED, # 5 Exhibit D−308 SEALED, # 6 Exhibit D−309 SEALED)(TRS) (Entered: 07/10/2019)
228 JOINT EXHIBITS (SEALED) (Attachments: # 1 Exhibit JX−32 (SEALED), # 2 Exhibit JX−37 (SEALED), # 3 Exhibit JX−39 (SEALED), # 4 Exhibit JX−40 (SEALED), # 5 Exhibit JX−49 (SEALED))(TRS) (Entered: 07/10/2019)
229 Government's Exhibit List by United States of America. (TRS) (Entered: 07/11/2019)
230 JOINT Exhibit List by The State of Mississippi, United States of America. (Attachments: # 1 Exhibit JX−1, # 2 Exhibit JX−2, # 3 Exhibit JX−3, # 4 Exhibit JX−4, # 5 Exhibit JX−5, # 6 Exhibit JX−6, # 7 Exhibit JX−7, # 8 Exhibit JX−8, # 9 Exhibit JX−9, # 10 Exhibit JX−10, # 11 Exhibit JX−11, # 12 Exhibit JX−12, # 13 Exhibit JX−13, # 14 Exhibit JX−14, # 15 Exhibit JX−15, # 16 Exhibit JX−16, # 17 Exhibit JX−17, # 18 Exhibit JX−18, # 19 Exhibit JX−19, # 20 Exhibit JX−20, # 21 Exhibit JX−21, # 22 Exhibit JX−22, # 23 Exhibit JX−23, # 24 Exhibit JX−24, # 25

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 26 of 27

07/19/2019
07/22/2019 07/22/2019 09/03/2019 09/17/2019

Exhibit JX−25, # 26 Exhibit JX−26, # 27 Exhibit JX−27, # 28 Exhibit JX−28, # 29 Exhibit JX−29, # 30 Exhibit JX−30, # 31 Exhibit JX−31, # 32 Exhibit JX−33, # 33 Exhibit JX−34, # 34 Exhibit JX−35, # 35 Exhibit JX−36, # 36 Exhibit JX−38, # 37 Exhibit JX−41, # 38 Exhibit JX−42, # 39 Exhibit JX−43, # 40 Exhibit JX−44, # 41 Exhibit JX−45, # 42 Exhibit JX−46, # 43 Exhibit JX−47, # 44 Exhibit JX−48, # 45 Exhibit JX−50, # 46 Exhibit JX−51, # 47 Exhibit JX−52, # 48 Exhibit JX−53, # 49 Exhibit JX−54, # 50 Exhibit JX−55, # 51 Exhibit JX−56, # 52 Exhibit JX−57, # 53 Exhibit JX−58, # 54 Exhibit JX−59, # 55 Exhibit JX−60 Part 1, # 56 Exhibit JX−60 Part 2, # 57 Exhibit JX−61, # 58 Exhibit JX−62, # 59 Exhibit JX−63, # 60 Exhibit JX−64, # 61 Exhibit JX−65, # 62 Exhibit JX−66, # 63 Exhibit JX−67, # 64 Exhibit JX−68, # 65 Exhibit JX−69, # 66 Exhibit JX−70)(TRS) (Entered: 07/12/2019)
231 NOTICE of Amended Trial Stipulations by United States of America (Attachments: # 1 Attachment Amended Trial Stipulations)(Rush−Federal Gov, Regan) (Entered: 07/19/2019)
232 Proposed Findings of Fact and Conclusions of Law by The State of Mississippi (Attachments: # 1 Exhibit 1 − chart)(Shelson, James) (Entered: 07/22/2019)
233 Proposed Findings of Fact and Conclusions of Law by United States of America (Fox−Federal Gov, Deena) (Entered: 07/22/2019)
234 Memorandum Opinion and Order. Signed by District Judge Carlton W. Reeves on 09/03/2019. (AC) (Entered: 09/03/2019)
235 EXHIBITS by United States of America (Attachments: # 1 Exhibit PX−12 APPROPRIATIONS, # 2 Exhibit PX−12 EXPENDITURES, # 3 Exhibit PX−14, # 4 Exhibit PX−21, # 5 Exhibit PX−23, # 6 Exhibit PX−24, # 7 Exhibit PX−31, # 8 Exhibit PX−33, # 9 Exhibit PX−39, # 10 Exhibit PX−43, # 11 Exhibit PX−46, # 12 Exhibit PX−53, # 13 Exhibit PX−60, # 14 Exhibit PX−64, # 15 Exhibit PX−71, # 16 Exhibit PX−77, # 17 Exhibit PX−80, # 18 Exhibit PX−96, # 19 Exhibit PX−102, # 20 Exhibit PX−102 DATA COLLECTION RESOURCES, # 21 Exhibit PX−103, # 22 Exhibit PX−104, # 23 Exhibit PX−104 DATA COLLECTION RESOURCES, # 24 Exhibit PX−115, # 25 Exhibit PX−119, # 26 Exhibit PX−120, # 27 Exhibit PX−147, # 28 Exhibit PX−151, # 29 Exhibit PX−155, # 30 Exhibit PX−156, # 31 Exhibit PX−158, # 32 Exhibit PX−160, # 33 Exhibit PX−163, # 34 Exhibit PX−170, # 35 Exhibit PX−182, # 36 Exhibit PX−183, # 37 Exhibit PX−184, # 38 Exhibit PX−196, # 39 Exhibit PX−198, # 40 Exhibit PX−199, # 41 Exhibit PX−200, # 42 Exhibit PX−201, # 43 Exhibit PX−202, # 44 Exhibit PX−206, # 45 Exhibit PX−208, # 46 Exhibit PX−210, # 47 Exhibit PX−211, # 48 Exhibit PX−213, # 49 Exhibit PX−216, # 50 Exhibit PX−220, # 51 Exhibit PX−223, # 52 Exhibit PX−235, # 53 Exhibit PX−251, # 54 Exhibit PX−259, # 55 Exhibit PX−260, # 56 Exhibit PX−262, # 57 Exhibit PX−269, # 58 Exhibit PX−278, # 59 Exhibit PX−279, # 60 Exhibit PX−281, # 61 Exhibit PX−282, # 62 Exhibit PX−307, # 63 Exhibit PX−309, # 64 Exhibit PX−310, # 65 Exhibit PX−315, # 66 Exhibit PX−319, # 67 Exhibit PX−320, # 68 Exhibit PX−321, # 69 Exhibit PX−322, # 70 Exhibit PX−326, # 71 Exhibit PX−327, # 72 Exhibit PX−328, # 73 Exhibit PX−337, # 74 Exhibit PX−354, # 75 Exhibit PX−363, # 76 Exhibit PX−365, # 77 Exhibit PX−366, # 78 Exhibit PX−367, # 79 Exhibit PX−368, # 80 Exhibit PX−371, # 81 Exhibit PX−373, # 82 Exhibit PX−376, # 83 Exhibit PX−377, # 84 Exhibit PX−378, # 85 Exhibit PX−380, # 86 Exhibit PX−392, # 87 Exhibit PX−393, # 88 Exhibit PX−394, # 89 Exhibit PX−395, # 90 Exhibit PX−396, # 91 Exhibit PX−405, # 92 Exhibit PX−405A, # 93 Exhibit PX−407, # 94 Exhibit PX−409, # 95 Exhibit PX−410, # 96 Exhibit PX−411, # 97 Exhibit PX−412, # 98 Exhibit PX−412A, # 99 Exhibit PX−413, # 100 Exhibit PX−414, # 101 Exhibit PX−415, # 102 Exhibit PX−416, # 103 Exhibit PX−417, # 104 Exhibit PX−418, # 105 Exhibit PX−419, # 106 Exhibit PX−420, # 107 Exhibit PX−421, # 108 Exhibit PX−422, # 109 Exhibit PX−423, # 110 Exhibit PX−424, # 111 Exhibit PX−438, # 112 Exhibit PX−441, # 113 Exhibit PX−448, # 114 Exhibit PX−449, # 115 Exhibit PX−450, # 116 Exhibit PX−451, # 117 Exhibit PX−452, # 118 Exhibit PX−453, # 119 Exhibit PX−454, # 120 Exhibit PX−455, # 121 Exhibit PX−457, # 122 Exhibit PX−473, # 123 Exhibit PX−481, # 124 Exhibit PX−482, # 125 Exhibit PX−483, # 126 Exhibit PX−488, # 127 Exhibit PX−501, # 128 Exhibit PX−502, # 129 Exhibit PX−503, # 130 Exhibit PX−551, # 131 Exhibit PX−595, # 132 Exhibit PX−667, # 133 Exhibit PX−668, # 134 Exhibit PX−710, # 135 Exhibit PX−735, # 136 Exhibit PX−800, # 137 Exhibit PX−801, # 138 Exhibit PX−825, # 139 Exhibit PX−836, # 140 Exhibit PX−861, # 141 Exhibit PX−880, # 142 Exhibit PX−887, # 143

Case: 3:16-cv-622 As of: 11/25/2019 01:40 PM CST 27 of 27

10/03/2019 10/03/2019 10/21/2019 11/07/2019 11/08/2019 11/12/2019 11/18/2019

Exhibit PX−888, # 144 Exhibit PX−898, # 145 Exhibit PX−920, # 146 Exhibit PX−929 CSU TABLE, # 147 Exhibit PX−929 EMERGENCY CRISIS LOG, # 148 Exhibit PX−930, # 149 Exhibit PX−941, # 150 Exhibit PX−943, # 151 Exhibit PX−954 Adult Med Psy Rec, # 152 Exhibit PX−954 Adult Psy Rec, # 153 Exhibit PX−954 CTS, # 154 Exhibit PX−954 Data Collection Ser, # 155 Exhibit PX−954 Licensed Bed Info, # 156 Exhibit PX−955, # 157 Exhibit PX−956 Unit 1, # 158 Exhibit PX−956 Unit 2, # 159 Exhibit PX−956 Unit 3, # 160 Exhibit PX−956 Unit 4, # 161 Exhibit PX−−956 Unit 5, # 162 Exhibit PX−956 Unit 6, # 163 Exhibit PX−956 Unit 7, # 164 Exhibit PX−956 Data Collection Ser, # 165 Exhibit PX−957 Unit 1, # 166 Exhibit Px−957 Data Collection Ser, # 167 Exhibit PX−974 Unit 1, # 168 Exhibit PX−974 Unit 2, # 169 Exhibit PX−974 Data Collection Ser, # 170 Exhibit PX−978, # 171 Exhibit PX−979, # 172 Exhibit PX−980, # 173 Exhibit PX−981, # 174 Exhibit PX−987, # 175 Exhibit PX−991, # 176 Exhibit PX−993, # 177 Exhibit PX−994, # 178 Exhibit PX−1002, # 179 Exhibit PX−1006 MAGNOLIA, # 180 Exhibit PX−1006 UNITED, # 181 Exhibit PX−1010 CLIENT DATA, # 182 Exhibit PX−1010 DATA COLLECTION SER, # 183 Exhibit PX−1011 CLIENT DATA, # 184 Exhibit PX−1011 DATA COLLECTION SER, # 185 Exhibit PX−1012 CLIENT DATA, # 186 Exhibit PX−1012 DATA COLLECTIONS SER, # 187 Exhibit PX−1013, # 188 Exhibit PX−1067 UNIT 1, # 189 Exhibit PX−1067 DATA COLLECTION SER, # 190 Exhibit PX−1068 UNIT 1, # 191 Exhibit PX−1068 DATA COLLECTION SER, # 192 Exhibit PX−1078, # 193 Exhibit PX−1102, # 194 Exhibit PX−1116, # 195 Exhibit PX−1124, # 196 Exhibit PX−1135, # 197 Exhibit PX−1136, # 198 Exhibit PX−1137)(TRS) (Entered: 09/17/2019)
236 NOTICE of United States' Proposal Regarding the Special Master by United States of America (Attachments: # 1 Attachment 1 − Hogan Resume, # 2 Attachment 2 − Hyde Resume, # 3 Attachment 3 − Kurtz Resume)(Schutzer−Federal Gov, Mathew) (Entered: 10/03/2019)
237 NOTICE of The State of Mississippi's Memorandum Regarding Special Master Candidates and The Role of The Special Master by The State of Mississippi (Attachments: # 1 Exhibit Exhibit 1 − CV of Joel A. Dvoskin, # 2 Exhibit Exhibit 2 − Rsum of Tracy J. Plouck)(Shelson, James) (Entered: 10/03/2019)
238 Unopposed MOTION to RESTRICT from public and to correct exhibit list by United States of America (Attachments: # 1 Attachment A − Errata to Exhibit List)(Schutzer−Federal Gov, Mathew) (Entered: 10/21/2019)
239 MOTION to Withdraw as Attorney by United States of America (Holkins−Federal Gov, Patrick) (Entered: 11/07/2019)
TEXT−ONLY ORDER granting Motion 239 to Withdraw as Attorney. Attorney Patrick Holkins−Federal Gov terminated. NO FURTHER WRITTEN ORDER SHALL ISSUE. Signed by Magistrate Judge F. Keith Ball on 11/8/2019. (dcw) (Entered: 11/08/2019)
TEXT−ONLY ORDER granting 238 Unopposed Motion to Seal or Restrict from Public and Correct Exhibit List. Signed by District Judge Carlton W. Reeves on 11/12/2019. NO FURTHER WRITTEN ORDER SHALL ISSUE. (AD) (Entered: 11/12/2019)
Set/Reset Hearings: Hearing on 236 and 237 set for 12/2/2019 at 3:00 PM in Courtroom 5B (Jackson) before District Judge Carlton W. Reeves. (AC) (Entered: 11/18/2019)