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

SOUTHERN DISTRICT OF MISSISSIPPI

)

_ FILED

J.B. and L.P., by and through their next friend, ) Mary Troupe; L.M., by and through his next friend, )

MAR 10 2010

Trasie Howard; and L.S., by and through his next )

friend, Sheila Davis,

)

)

J. T. NOBLIN. CLERK

BY

_DEPUTV

Plaintiffs,

)

v.

~ Case No. =:s \\ Qt.V 153 tt-rW-LQ-A-

)

GOVERNOR HALEY BARBOUR, in his official )

capacity; ROBERT L. ROBINSON, in his official )

capacity as Director of the Mississippi Division of )

Medicaid; PATRICIA AINSWORTH, in her

)

official capacity as chair of the Mississippi Board )

of Mental Health; and EDWIN C. LEGRAND, in )

his official capacity as Executive Director of the )

Mississippi Department of Mental Health,

)

)

Defendants.

)

----------------------------------~)

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

INTRODUCTORY STATEMENT 1. Thousands of children and youth in Mississippi have a behavioral or emotional disorder. Tragically, all too many of these children spend their formative years isolated from their families and communities as they cycle through institutions that cannot provide them adequate care. Children in Mississippi with behavioral and emotional problems face a rigid, facility-based mental health system that both ignores and exacerbates their needs. In order to access intensive mental health services in Mississippi, children must either deteriorate to the point of crisis required for involuntary hospitalization, or submit to unnecessary institutionalization. Both scenarios force children to relinquish their families, communities, and freedom, and endure

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isolation, multiple placements, and severed connections, making even more challenging the task

of helping these children overcome their difficulties. The failure to provide children with

intensive mental health services in a home or community-based setting denies children medically

necessary services and results in needless institutionalization, in violation of federal law.

Mississippi's taxpayers are thus forced to shoulder the burden of an expensive and ineffective

mental health system that greatly diminishes the quality of life and human potential of thousands

of children across the State. Providing children with medically necessary home- and

community-based services, rather than relying exclusively on hospitals and institutions, would

save the State and its taxpayers a significant amount of money and improve the life chances of

thousands of children in Mississippi.

2.

The Defendants are well-aware that the mental health system fails to provide medically

necessary home- and community-based mental health services, and subjects children to harmful

and unnecessary institutionalization. A 2008 report from a committee of the State Legislature

describes the dramatic shift from an institution-based system to a community-based system of

mental health care in the United States, and warns that "[a]s of2005, Mississippi still ha[s] yet to

follow the national trend set over fifteen years ago of devoting the majority of its mental illness

expenditures to community-based services." Joint Legislative Committee on Performance

Evaluation and Expenditure Review (PEER), Report to the Mississippi Legislature, Planningfor

the Delivery ofMental Health Services in Mississippi: A Policy Analysis 29 (Jun 26, 2008),

available at: http://www.peer.state.ms.us/reports/rpt511.pdf. Contrary to this national trend,

Mississippi continued to build new institutions into the 1990s, well after most other states turned

their resources to community-based services, and Mississippi ranks second nationally in per-

capita spending for institution-based mental health care. ld. at 28. The report warns that the

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u.s. Supreme Court's 1999 holding in Olmstead v. L.c., ex reI. Zimring, 527 U.S. 581 (1999)
will require the State to move toward providing more community-based services in the near future. Id. at 33. 3. As a result of Defendants' continued over reliance on institutions, hundreds of children with behavioral and emotional disorders cycle through hospitals, emergency rooms, acute care facilities, and residential treatment centers without obtaining any long-term relief. These placements may offer a brief period of respite, but the benefits are fleeting at best. Mississippi's system of mental health care is so weak and uncoordinated that most children are released from facilities with little or ineffective follow-up community mental health care. It can take months to get an appointment from a community mental health center, and when services finally arrive, they consist of little more than minimal medication management and outpatient counseling two times a month, which is inadequate for a child with significant behavioral and emotional problems. Not surprisingly, many children and families find themselves thrown back into a crisis, forced to repeat the cycle of institutionalization yet again. Under the current system, Defendants opt to raise children living with behavioral and emotional problems in hospitals and institutions, rather than providing the intensive, individualized care that allows children to remain in their homes and communities. 4. J.B., L.P., L.M., and L.S. and the class they represent are Medicaid-eligible children who have behavioral or emotional disorders, but who are not being provided with the treatment required by federal law. As Medicaid-eligible children under the age of twenty-one, Plaintiffs are entitled to receive Early and Periodic Screening, Diagnostic, and Treatment Services (EPSDT Services) which include services necessary to correct or ameliorate mental health conditions. 42 U.S.c. § 1396a(a)(43)(C); 42 U.S.C. § 1396d(a)(4)(B); 42 U.S.C. § 1396d(r)(5); 42 C.F.R. §
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441.55. Despite widespread agreement among mental health experts that children with significant emotional or behavioral problems need intensive home- and community-based services, none of the named Plaintiffs have ever received such services; and all have been, or currently are, segregated in a restrictive institutional setting due to the lack of medically necessary services. Each Plaintiff has been and is being harmed because s/he is not receiving medically necessary mental health services and is needlessly institutionalized or at risk of needless institutionalization. The continued denial of medically necessary services, as well Defendants' reliance on unnecessary institutionalization, has caused and will continue to cause serious, long term and irreversible harm to the Plaintiffs. 5. The Plaintiffs seek prospective injunctive relief ordering the Defendants to comply with federal law mandates to provide Plaintiffs medically necessary mental health services and to serve Plaintiffs in home and community settings. The violations set forth in this Complaint have been acknowledged by the state legislature, mental health professionals, and the Defendants themselves, but little has been done to address the problem. Declaratory and injunctive relief is necessary to ensure that the Plaintiffs receive the treatment and services to which they are entitled by law.
PARTIES Individual Plaintiffs 6. Plaintiff J.B. is a seventeen year old boy who has experienced over ten placements in psychiatric hospitals and long-term residential treatment facilities and is currently committed to the Specialized Treatment Facility in Gulfport, MS. J.B. is from North Central Mississippi, and he brings this action through his next friend, Mary Troupe.
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7. L.P. is a seventeen year old girl who has experienced a number of psychiatric hospitalizations. L.P. is from the Jackson metropolitan area and is currently committed to the Specialized Treatment Facility in Gulfport, MS. She brings this action through her next friend, Mary Troupe. 8. L.M. is a sixteen year old boy who has experienced six psychiatric hospitalizations and one long-tenn placement in a psychiatric treatment facility. L.M. resides in the Mississippi Delta. He brings this action through his mother and next friend, Trasie Howard. 9. L.S. is a thirteen year old boy who has been placed in long-tenn psychiatric residential treatment facilities on three separate occasions. He is from Southwest Mississippi and currently resides at the CARES Center in Jackson, Mississippi. He brings this action through his legal guardian and next friend, Sheila Davis. 10. All Plaintiffs need but are currently being denied intensive home- and community-based mental health services. All are currently institutionalized or at imminent risk of being institutionalized as a result of being denied the intensive home- and community-based mental health services they need. Defendants 11. Defendant Haley Barbour is the Governor of Mississippi, a public entity covered by Title II of the ADA, 42 U.S.C. § 12131(1) and a participant in the federal Medicaid program. Defendant Barbour, as supreme executive officer of the state, is responsible for ensuring that all Mississippi agencies comply with applicable federal law. Miss. Code Ann. § 7-1-5 (a)(c). Defendant Barbour is responsible for supervising the official conduct of all executive officesincluding the Department of Mental Health, the State Board of Mental Health, and the Division of Medicaid. Miss. Code Ann. § 7-1-5 (d). Defendant Barbour appoints the members of the
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State Board of Mental Health, Miss. Code Ann. § 41-4-3(1); appoints the Executive Director of the Division of Medicaid, which is a division of the Governor's Office, Miss. Code Ann. § 4313-107, and approves all Medicaid expenditures. Miss. Code Ann. § 43-13-117(A). Defendant Barbour is sued in his official capacity. 12. Defendant Robert L. Robinson is the Executive Director of the Mississippi Division of Medicaid, the single state agency responsible for the administration of the Mississippi Medicaid program. Defendant Robinson oversees the development and execution of Mississippi's Medicaid Plan and all Medicaid policies and procedures, including those regarding services for children with behavioral or emotional disorders. Miss. Code Ann. § 43-13-107, § 43-13-117. Defendant Robinson is also responsible for ensuring that Mississippi's Medicaid program operates in compliance with state and federal law. Defendant Robinson is sued in his official capacity. 13. Defendant Patricia Ainsworth is the Chair of the State Board of Mental Health, and is responsible for appointing a full-time Executive Director of the Department of Mental Health, which administers mental health services for children. Defendant Ainsworth and the State Board of Mental Health are responsible for establishing and administering all mental health services on a state and regional level for the State of Mississippi; and supervising, coordinating and establishing standards for all operations and activities in Mississippi related to mental health and the provision of mental health services, including those regarding services for children with behavioral or emotional disorders. Miss. Code Ann. § 41-4-7. Defendant Ainsworth is sued in her official capacity. 14. Defendant Edwin C. LeGrand serves as the Executive Secretary of the State Board of Mental Health and is the Executive Director of the Mississippi Department of Mental Health, the
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state agency responsible for administering, coordinating, developing, improving, and planning all services for individuals living with mental illness in Mississippi. Miss. Code Ann. § 41-4-1. Defendant LeGrand is responsible for establishing and administering all mental health services on a state and regional level for the State of Mississippi; supervising, coordinating and establishing standards for all operations and activities in Mississippi related to mental health and the provision of mental health services, including those regarding services for children with behavioral or emotional disorders, Miss. Code Ann. § 41-4-7; obtaining funds from the State Legislature for Medicaid services; and organizing programs and services in a manner that maximizes funding through the Division of Medicaid. Miss. Code Ann. § 43-13-111. Defendant LeGrand is sued in his official capacity.
JURISDICTION AND VENUE 15. This is a class action lawsuit authorized by 42 U.S.C. § 1983 to redress the ongoing deprivation under color of state law of rights guaranteed by the United States Constitution and federal statutes. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 16. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this district, and because all Defendants named herein reside in, maintain offices in, or are responsible for enforcing the laws relevant to this litigation in this district.
CLASS ALLEGATIONS 17. This action is properly maintained as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. Plaintiffs represent a statewide class of Medicaid-eligible children under the age of twenty-one who have a behavioral or emotional disorder and who need intensive home- and community-based mental health services. "Intensive home- and
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community-based services" includes: a comprehensive assessment, intensive case management services, mobile crisis services, in-home therapy, behavioral support services, family education and training, and therapeutic foster care. 18. The size of this class is so numerous that joinder of all members is impracticable. There are thousands of children with an emotional or behavioral disorder in Mississippi. In 2009, over 1300 children and youth were placed in a psychiatric residential treatment facility or therapeutic group home; and in 2008 over 700 children were committed to a state hospital. The great majority of these children could and should have been served instead in their own homes or in a therapeutic foster home. 19. There are questions of law and fact common to all class members, including: a) whether Defendants' failure to provide medically necessary intensive home- and communitybased services violates the EPSDT mandate of Title XIX of the Social Security Act; b) whether Defendants violate the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide mental health services in the most integrated setting. 20. The claims of the named Plaintiffs are typical of the claims of the Plaintiff class. As a result of the Defendants' policies, practices, and procedures, the individual Plaintiffs and class members are not provided with intensive home-based and community-based services to treat or ameliorate their behavioral or emotional disorders; and are currently segregated, or at risk of segregation, due to Defendants' failure to provide medically necessary and legally mandated services. 21. The named Plaintiffs will fairly and adequately represent the interests of the class. They possess a strong personal interest in the subject matter of the lawsuit, and are represented by experienced counsel with expertise in class action litigation on behalf of children and
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adolescents in federal court. Counsel have the legal knowledge and the resources to fairly and adequately represent the interests of all class members in this action. Fed. R. Civ. P. 23(a)(4). 22. Defendants have acted and refuse to act on grounds generally applicable to the class in that Defendants' policy and practice of violating the Plaintiffs' rights has affected all class members. Accordingly, final injunctive and declaratory relief is appropriate for the class as a whole.
CONSTITUTIONAL AND STATUTORY BACKGROUND A. The Federal Medicaid Program 23. Medicaid is a voluntary, cooperative, federal-state program under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., designed to provide medically necessary health and mental health care to, among others, low-income children and families. 24. Participation in the Medicaid program is voluntary; and states that choose to participate receive federal matching funds for their own programs. To receive federal matching funds, states must adhere to the requirements set forth in Title XIX of the Social Security Act and its implementing regulations. 42 C.F.R. §§ 430.0 et seq. In addition, states must have a state plan that describes their administration of the program and identifies the services they will provide to eligible beneficiaries. 42 U.S.C. § 1396a. 25. Federal law requires states to fully implement the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) program of Medicaid. 42 U.S.c. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4)(B); 42 U.S.C. § 1396d(r). The purpose of the EPSDT program is to ascertain children's physical and mental health conditions and ensure children receive needed services "to correct or ameliorate defects and physical and mental illnesses and conditions ...." 42 U.S.C. § 1396d(r)(5). Under EPSDT, states are required to provide screening services to identify health
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and mental health conditions and illness. 42 U.S.C. § 1396d(r)(1). States must also provide needed diagnostic and treatment services to correct or ameliorate health or mental health conditions. 42 U.S.C. § 1396a(a)(43)(C); 42 U.S.C. § 1396d(r)(5). Needed services must be provided whether or not such services are included in the state plan. 42 U.S.C. § 1396d(r)(5); 42 C.F.R. § 441.56(c). 26. Mississippi has chosen to participate in the Medicaid program; and therefore must provide EPSDT services to eligible children under the age of 21. 27. For children with significant emotional and behavioral disorders, intensive home- and community-based services are medically necessary to treat and ameliorate their disorders. 28. Intensive home- and community-based services are typically designed and supervised by a "child and family team." By their nature, such services are flexible and individualized, aimed at improving functioning in the home, in school, and in the community. They include, but are not limited to, a comprehensive assessment, intensive case management services, mobile crisis services, in-home therapy, behavioral support services, family education and training, and therapeutic foster care. 29. Mississippi has not included intensive home-and community-based services in its state Medicaid plan; nor does Mississippi otherwise make intensive home- and community-based services available on a consistent, statewide basis to children for whom the services are medically necessary. Outside of its Medicaid program, Mississippi offers a limited amount of intensive home- and community-based services to a limited number of children in limited areas of the state, through a federal demonstration grant program called MYPAC. To be eligible, a child must meet the clinical criteria for admission to a psychiatric residential treatment facility; and MYPAC has an upper limit on the number of children it can serve each year. MYPAC does
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not provide therapeutic foster care services. l Currently, 180 youth are enrolled in the program. During the last fiscal year, fewer than 200 children received services through MYPAC. In contrast, close to 2,000 youth received mental health services in an institutional setting during the last fiscal year: 557 children were committed to a state hospital, 888 were placed in a psychiatric residential treatment facility, 476 were placed in a therapeutic group home, and hundreds more cycled through emergency rooms and other acute care facilities for crisis care and treatment. B. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act 30. Title II of the Americans with Disabilities Act prohibits public entities from discriminating against or excluding a qualified individual with a disability from participating in the benefits of services, programs, or activities of the public entity on the basis of disability. 42 U.S.C. § 12132; 28 C.F.R. § 35.130. 31. The ADA requires 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). 32. Public entities also must make reasonable modifications in polices, practices, or procedures when necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7). 33. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, imposes identical requirements on state programs and activities that receive federal financial assistance.
1 A limited number of children in the custody of the Mississippi Department of Human Services have access to therapeutic foster care. However, these foster homes do not provide intensive services and supports; and therapeutic foster care is not available as a Medicaid-covered service.
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34. The Defendants discriminate against the named Plaintiffs and the Plaintiff class by failing to provide them services in the most integrated setting appropriate to their needs. An integrated setting is one that allows individuals to live in their home or a home-like setting with natural family supports and the opportunity to attend school and participate in their communities with non-disabled peers. Defendants offer only a negligible amount of intensive home- and community-based services to children and have chosen instead to serve children in needlessly segregated settings. 35. Hospitals, psychiatric residential treatment facilities, and group homes are all restrictive settings that severely limit a child from interacting with her family, school, peers, and community. Additionally, out-of-home placements exacerbate many children's behavioral and emotional problems by severing these important connections. By failing to provide adequate home-based and community-based mental health services, the Defendants have and continue to discriminate against the Plaintiff class by unnecessarily segregating them in violation of the ADA and Section 504.
STATEMENT OF FACTS A. The Crisis for the Plaintiff Class 36. The evidence from mental health and child welfare experts is clear that intensive homeand community-based services are medically necessary for children with significant behavioral or emotional disorders. See generally Community Treatment for Youth: Evidence-Based Interventions for Severe Emotional and Behavioral Disorders (Barbara J. Bums & Kimberly Hoagwood eds., 2002). These services, which are mandated by law, include a comprehensive assessment, typically by a child and family team, intensive case management services, mobile
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crisis services, in-home therapy, behavioral support services, family education and training, and therapeutic foster care. 37. The evidence is equally clear that institutional care not only fails to meet children's needs, but is often counterproductive and harmful. Institutional care deprives children of normalizing experiences, isolates them with other children who have behavior problems, and exacerbates feelings of anxiety and concern. Subjecting children with mental illness to unnecessary institutional care constitutes discrimination in violation of federal law. 38. Notwithstanding the overwhelming evidence supporting the need for intensive home- and community-based services, Defendants have failed to provide these services to the named Plaintiffs and class members. 39. The majority of children with significant behavioral or emotional disorders seek services through their regional community mental health center. These centers are certified and overseen by Defendants. Intensive home-based and community-based services are not available through these centers? The majority of children served by the centers receive infrequent office-based therapy or counseling and medication, which alone are inadequate to meet the needs of children with significant behavioral or emotional disorders. Some community mental health centers are open only a few days a week. 40. Instead of providing intensive home- and community- based services, Defendants have relied on institutional settings where children with behavioral or emotional disorders are segregated for extended periods of time, often far from their home. Mississippi's mental health care system is so highly reliant on institutional care that children with significant behavioral or
2 The exception to this is the Pine Belt Mental Health Center, which provides some intensive home-based and community-based services through a federal system of care grant called commUNITY Cares. However, very few children receive these services. The Pine Belt Mental Health Center covers nine counties and serves over 3,000 children and youth.
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emotional disorders can expect to make the rounds of at least two state-run facilities, two to three private facilities, and a handful of emergency rooms, acute care facilities, and therapeutic group homes. This adds up to years of institutionalization before a child's twenty-first birthday, and severe and permanent disruptions to their family, education and personal development. 41. Even when a child experiences some benefits from institutional care, these gains dissipate quickly upon discharge because the community mental health system is so weak and fragmented. The Defendants' discharge planning for children leaving the State's institutions consists of nothing more than a referral to the local community mental health center, where it can take weeks to get an appointment, and care is limited to infrequent outpatient counseling and medication. Consequently, children return to their families' care with little services or supports. Not surprisingly, many children quickly deteriorate, only to face another traumatic cycle of institutionalization and isolation. B. The Crisis for Individual Plaintiffs 42 Plaintiff J.B. is a seventeen year-old boy from North Central Mississippi who has been in the state's foster care system since he was old enough to walk. The Department of Human Services initially removed J.B. from his home on account of abuse and neglect by his mother. 43. In J.B.'s thirteen years in the foster care system, he has been hospitalized at least five times, placed in six different foster homes, five residential treatment facilities, more than ten group homes and shelters, and locked in a secure detention facility on at least twelve occasions when a group home or shelter could not handle J.B.'s behavioral and emotional problems. J.B.'s "problem behaviors" have been described as "multiple hospitalizations" and "unsuccessful foster placements." J.B. needs but has never received intensive home-based and community-based servIces.
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44. DHS attempted to reunify J.B. with his mother in 2009; however, he was removed and placed in a group home after he contacted the police to break up a fight between his mother and her boyfriend. The group home asked J.B. to leave because of his difficulty controlling his behavior. When J.B. ran away, he was placed in a secure detention facility until a bed became available for him at a private mental health facility. He was then committed to the Specialized Treatment Facility ("STF") in May, 2009. 45. J.B. is currently in the physical custody of the Department of Mental Health, which operates STF The examining physician who certified J.B.'s placement in a residential facility did not identify a medical need for residential placement, but rather stated that residential treatment was necessary because J.B.' s mother had resumed drinking and could not offer a stable environment. 46. During his intake interview at STF, J.B. stated that his three wishes in life are: "To rewind time. To show my mama that I can be a better child. To be independent and on my own." J.B. just graduated from high school with an occupational diploma. While at STF, J.B. has written an autobiography to memorialize both the meaningful and traumatic events in his life, which he hopes to publish one day. 47. J.B. apparently remains confined to STF so he can complete one month of a job-training program -an activity that could easily be accommodated if he lived in a home- or communitybased setting. 48. J.B. will not receive intensive home-based and community-based ServIces upon discharge from STF. J.B.' s community mental health center does not offer such services.
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49. Plaintiff L.P. is a seventeen year old girl from the Jackson metropolitan area, and was placed in DHS custody in August 2009 when it was discovered that she had been sexually abused. 50. L.P. has an extensive history of abuse and trauma. Beginning at a young age, she was sexually abused by a male relative, and other men. L.P. began to display emotional and behavioral problems around the age of eight. Her symptoms worsened over time, until she was hospitalized at the age of ten. Since that time, L.P. has been hospitalized four more times and placed in a long-term residential treatment facility, but has never received intensive home-based and community-based services. These intensive services are not offered by her community mental health center. 5l. L.P. is a good student, earning A's and B's, and has successfully maintained a job at a fast food restaurant. Her wishes in life include: "For my family to be back to normal. A place for me to live, so it can be like the loving family that I have always wanted." 52. DHS placed L.P. in a foster home in August, 2009, after a period of hospitalization. When L.P. ran away from the foster home, she was held in a maximum security detention facility for two weeks until she was committed to the state psychiatric hospital for expressing suicidal thoughts. L.P.'s foster care caseworker described her chief problem as "depression, anxiety lack of supervision." L.P.'s state hospital discharge plan was for L.P. "to go to long-term residential treatment." 53. After stabilizing at the state hospital, L.P. was transferred to STF, where she recently obtained her G.E.D. Her discharge plan suggests that L.P. live with her father, but does not include any arrangements to connect L.P. with needed intensive home-based and communitybased services.
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54. Plaintiff L.M. is a sixteen year old boy with bipolar disorder and a history of sexual trauma. L.M. has been hospitalized four times and placed in long-term residential treatment. He is currently living with his mother in the Delta, and is not receiving intensive mental health services. 55. L.M. experienced a succession of traumatic events before his thirteenth birthday. L.M. was molested at age seven, and shortly after that he began to display disruptive behaviors at home and school. When L.M. was ten, his father died unexpectedly; and the next year L.M. endured more sexual abuse and was hospitalized for mental health treatment. When he was thirteen, he discovered his grandmother's body after she passed away, and he lost both his aunt and uncle the following year. L.M.'s behavior at home and school became increasingly challenging, and he was hospitalized in acute care facilities throughout his early teens when his mother could no longer handle his behavior at home. 56. Despite trauma and disruptions to his life, L.M. remains a lively, outgoing child who enjoys dancing and superman. L.M. has a passion for baking pastries and desserts, which he learns to make by watching cooking shows on television. His dream in life is to attend culinary school to become a pastry chef. 57. L.M. has not received intensive home-based and community-based services, but he has spent years of his life in segregated, institutional settings. In addition to five hospitalizations in acute psychiatric facilities, L.M. was committed to the state hospital for five months in February, 2008. At the end of his commitment, Defendants transferred L.M. to STF, where he stayed for close to a year. L.M.' s discharge plan from STF consisted of a referral to his community mental health center, which does not provide intensive home-based and community-based services. When L.M.'s behavior deteriorated within a few months of his discharge, he was hospitalized for
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two weeks and committed to the state's juvenile training school less than two months later because L.M. had exhausted other institutional options. L.M. was recently released from the training school, but has not been provided with the intensive mental health services he needs. 58. PlaintiffL.S. is a twelve year old boy from Southwest Mississippi. He is currently placed at the CARES Center, a private residential treatment center in Jackson, Mississippi - close to two hours away from his home. 59. L.S. entered the foster care system at the age of four after a family tragedy. L.S. was eventually placed in the custody of his aunt, who is now his legal guardian. 60. L.S. began to display behavioral and emotional problems at a young age, and was hospitalized at the age of eight, and again at age nine. He was placed in a private residential treatment center when he was ten, and is currently on his third placement in a long-term residential treatment center. 61. L.S. has received only limited outpatient counseling and medication management from his community mental health center, which is only open two days per week 62. L.S. recently told his therapist that his favorite thing to do is visit friends and family. L.S. wants to return to his home, and his aunt worries about the disruption and distance imposed by his placement so far away. L.S.'s aunt wants L.S. to return home, but L.S. needs intensive home-based and community-based services to support this transition.
CAUSES OF ACTION Count I - EPSDT Services,42 U.S.C. § 1396d et seq. 63. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein.
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64. In violation of the EPSDT provisions of the Medicaid Act, Defendants, while acting under the color of law, have failed to provide Plaintiffs with medically necessary intensive home- and community-based mental health services when such services are medically necessary to treat or ameliorate their conditions. 42 U.S.C. § 1396a(a)(43), § 1396d(r). 65. Defendants failure to provide statutorily-mandated mental health services violates 42 U.S.C. § 1983 by depriving Plaintiffs of their statutory rights under the Medicaid Act to receive medically necessary mental health services.
Count II - Americans with Disabilities Act and Section 504 of the Rehabilitation Act 66. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 67. Children with behavioral or emotional disorders are qualified individuals with disabilities within the meaning of the ADA, and are "otherwise qualified individuals with a disability" within the meaning of the Rehabilitation Act. 68. Defendants are public entities subject to the provisions of the ADA. Defendants receive federal financial assistance, and are thus subject to the provisions of the Rehabilitation Act. 69. Defendants have failed to administer services, programs, and activities in the most integrated setting appropriate to the needs of children with emotional or behavioral disorders. Defendants have discriminated against these children by needlessly placing them in institutional settings to receive mental health care. While in these settings, children are segregated from the community and prevented from maintaining meaningful contact with their families, schools, and communities. 70. The relief sought by Plaintiffs would not require the creation of services that are new to Mississippi or inconsistent with Mississippi's stated public policies. Defendants claim to support
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and embrace the refonns sought by Plaintiffs in this case. The relief sought would further the Defendants' stated goal to convert to a community-based system of mental health care.
Moreover, the relief sought by Plaintiffs would not impose unreasonable additional costs on
Defendants' service system. Defendants are already legally mandated to provide Plaintiffs intensive horne-based and community-based services. Furthennore, the relief sought by Plaintiffs could be funded by the savings Mississippi would realize from reduced reliance on institutional care. Accordingly, the relief sought by Plaintiffs would not amount to a fundamental alteration within the meaning of the ADA or Section 504.
REQUEST FOR RELIEF WHEREFORE, the plaintiffs respectfully request that this Court:
1. Certify this case as a class action pursuant to Fed. R. Civ. P. 23;
2. Declare unlawful Defendants' failure to comply with the mandates of the Medicaid Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act;
3. Enter a preliminary and pennanent injunction enjoining Defendants from subjecting members of the Plaintiff class to practices that violate their rights under the Medicaid Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act;
4. Award to the Plaintiffs the reasonable costs and attorney's fees incurred in the prosecution of this action;
5. Award such other equitable and further relief as the Court deems just and proper.
RESPECTFULLY SUBMITIED, this ~y of March, 2010. ~()
~ c:~
Vanessa Carroll, Miss. Bar No. 102736 Sheila A. Bedi, Miss. Bar No. 101652 Mississippi Youth Justice Project A Project of the Southern Poverty Law Center 921 N. President St. Suite B Jackson, Mississippi 39202 601-948-8882 (phone) 601-948-8885 (fax)
20

Case 3:10-cv-00153-HTW-LRA Document 1 Filed 03/10/10 Page 21 of 22 Robert B. McDuff, Miss. Bar. No. 2532 767 North Congress Street Jackson, Mississippi 39202 60 1-969-0802 (phone) 601-969-0804 (fax) Ira Bumim, D.C. BarNo. 406145* The Bazelon Center for Mental Health Law
1101 15th st. NW, Suite 1212
Washington, D.C. 20005 202-467-5730 (phone) 202-223-0409 (fax) *pro hac vice motion to be filed
21

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Case 3:10-cv-00153-HTW-LRA Document 1 Filed 03/10/10 Page 22 of 22
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
by hand delivery on:
Harold Pizzetta, III Special Assistant Attorney General Chief, Civil Litigation Division Mississippi Office of the Attorney General Walter Sillers Building 550 High Street, Suite 1200 Jackson, MS 39201
This ~ day of March, 2010.

 
 Case 3:10-cv-00153-HTW-LRA Document 48-1 Filed 02/27/12 Page 1 of 37 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 1 ("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 Ame1: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 United 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.

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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.P.R. § 35.172(a), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-l, 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 tme 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.

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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 opmwn.
• 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 of27 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.

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• 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 ofthe 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 ofthe 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.

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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 ofthe 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.

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• 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 ofDMH; 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 ofthese 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.

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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 ofthe 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 Mississippi485; 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 Hospital311; North Mississippi State Hospital- 49; South Mississippi State Hospital- 44; Central Mississippi Residential Center (including the crisis stabilization component)- 55; and the

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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.

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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 ofinstitutionalization
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.

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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. § 1210l(b)(l). 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 ofthe 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.

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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 disabiliti 1 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
°1 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).

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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, ~, 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.").

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the mainstream of society and because they provide opportunities for people with disabilities to interact with non-disabled persons in all facets oflife.
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.
I. 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 repmi 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

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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 51'' 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.H

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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 $3 8 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 ofNew 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 ofthe 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).

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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 often-bed off-campus ICF residences for persons with DD, and is planning and constructing new buildings at East Mississippi State Hospita1. 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 ofthe 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."

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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

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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 aDD 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.

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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 ofMental 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 ofthe 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 (9'h 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 (lOth 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 ofthe 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 ofFY 2010. The State offers waiver slots to individuals on the

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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-institutionalizatimi. 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 ofthese 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

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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 ofthe 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 ofthe
some of these homes, staff abuse or neglect the individuals, misappropriate individuals' funds or property, and deny personal rights. See,~' Ignored and Neglected: Personal Care Home Crisis in Mississippi, Disability Rights Miss., Jan. 14,2010.

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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 ofhome and community-based waivers that currently serve individuals in community-based settings. However, there is a need for changes in the delivery ofthose 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 additional2,500 persons by 2007; the IDD waiver to include an additional1,600 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 additional2,000 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 ofFY 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

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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 ofthe ADA.
2. Expansion ofExisting 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.

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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 ofDMH 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 transfonn 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" ofthe 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
°2 Consistent with this, in its FY 2011 State Plan, DMH's Bureau oflntellectual 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."

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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 ofServices Can be Facilitated by Reallocation ofResources 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 ofcare 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 ofPa., 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

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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.

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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.

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Housing resources also vary by region, with some regions offering supported housing, HUD 811 housing/' 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.

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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 ofthe 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 ofthe Medicaid Act, participating states must provide coverage to Medicaid-eligible individuals under the age of21 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 ifthe State has not otherwise elected to provide such coverage for other populations. 42 U.S.C. § 1396d(r)(5); see also S.D. ex rei. 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,~ 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 I, Troupe v. Barbour, No. 3:10-153 (S.D. Miss. Apr. 8, 2011).

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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)(l)-(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, ~, 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. Ofthe 570 children treated in State psychiatric facilities in FY 20 I 0, 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

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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)(l)(A)(IV); 34 C.P.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).

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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

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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 ofthese 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

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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 110 I 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

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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 POBox 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

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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 3943 7
Mr. Michael Harris Director Hudspeth Regional Center Highway 475 South POBox 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

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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

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

J.B. and L.P., by and through their next friend, MARY TROUPE; L.M., by and through his next friend, TRASIE HOWARD; and L.S., by and through his next friend, SHEILA DAVIS

PLAINTIFFS

V.

CIVIL ACTION NO. 3:10-CV-153 HTW-LRA

GOVERNOR HALEY BARBOUR, in his official capacity; ROBERT L. ROBINSON, in his official capacity as Director of the Mississippi Division of Medicaid; PATRICIA AINSWORTH, in her official capacity as chair of the Mississippi Board of Mental Health; and EDWIN C. LEGRAND, in his official capacity as Executive Director of the Mississippi Department of Mental Health

DEFENDANTS

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING OLIVIA Y. PLAINTIFFS’ MOTION TO INTERVENE

A class of plaintiffs from civil case no. 3:04-cv-251-TSL-FKB (hereinafter, “Olivia

Y. plaintiffs”), have moved for an intervention of right pursuant to Fed.R.Civ.P. 24(a)(2).1

In the alternative, they move for permissive intervention under Fed.R.Civ.P. 24(b).2

They claim that intervention is appropriate because the instant lawsuit and a case they

1 Fed.R.Civ.P. 24(a)(2) states: (a) INTERVENTION OF RIGHT. On timely motion, the court must permit anyone to intervene who: . . . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
2 Fed.R.Civ.P. 24(b) states: (b) PERMISSIVE INTERVENTION. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.
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settled in January of 2008 both involve the issue of provision of mental health services
for children in Mississippi’s foster care system.
The plaintiffs in this case are Medicaid-eligible children under twenty-one years
of age, with behavioral and emotional disorders. Under Title XIX of the Social Security
Act, Medicaid-eligible children are entitled to receive Early and Periodic Screening,
Diagnostic, and Treatment Services (“EPSDT”). See Title 42 U.S.C. § 1396a(43)(C),3
Title 42 U.S.C. § 1396d(a)(4)(B),4 Title 42 U.S.C. § 1396d(r)(5).5 The plaintiffs in the
current lawsuit ask this court to declare that defendants have failed to comply with the
mandates of the Medicaid Act, and other federal laws, by denying them necessary and
federally-mandated intensive home and community-based mental health services.
On March 30, 2004, the plaintiffs in Olivia Y. v. Barbour, Civil Action No.
3:04cv251LN (S.D. Miss), filed a lawsuit on behalf of all children who were, or would be,
in the legal custody of the Division of Family and Children’s Services. The lawsuit
3 Title 42 U.S.C. § 1396a(43)(C) states: (a) Contents A State plan for medical assistance must–
(43) provide for-(C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and
4 Title 42 U.S.C. § 1396d(a)(4)(B) states “early and periodic screening, diagnostic, and treatment services (as defined in subsection (r) of this section) for individuals who are eligible under the plan and are under the age of 21;”
5 Title 42 U.S.C. § 1396d(5)(5) states: (r) Early and periodic screening, diagnostic, and treatment services The term “early and periodic screening, diagnostic, and treatment services” means the following items and services:
(5) Such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.
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alleged that Mississippi’s state officials were operating a constitutionally deficient child welfare system that placed children in Mississippi’s foster care at a substantial risk of harm, in violation of their rights under federal law and the United States Constitution. Specifically, the complaint alleged that the Mississippi Department of Human Services (“DHS”) and the Division of Family and Children’s Services (“DFCS”) cycled foster children through numerous unsuitable foster care placements or institutions where their medical, dental and psychological needs were left unmet and where they had little chance of finding a permanent family.
The court certified the class of children who were currently in the foster care system or who would enter foster care. Following the class certification, both parties engaged in years of discovery and litigation. The plaintiffs’ counsel retained child welfare and foster care experts who conducted a thorough investigation and issued detailed reports on various aspects of the Mississippi foster care system, including the lack of mental health services available to foster children and the over institutionalization of foster children.
On January 4, 2008, the parties in Olivia Y. reached a settlement agreement, entitled Mississippi Settlement Agreement and Reform Plan (“Settlement” or “Olivia Y. Settlement”), which was entered by the court. The Settlement established standards and outcome measures that DFCS and DHS, as the children’s legal custodians, had to meet within five years of the order. Olivia Y. plaintiffs’ Brief in Support of its Motion to Intervene at 4.
Among other things, the Olivia Y. Settlement mandates that DFCS and DHS provide specific services to meet foster children’s mental health needs. Id at 5. For
3

example, it requires the State to provide mental health assessments for children four years old and older. Once assessed, children must receive all recommended mental health services. Id. It also mandates DFCS to place foster children in licensed placements that are the least restrictive setting that can meet their individual therapeutic, medical and educational needs. Id. Under the Settlement, children must receive all necessary therapeutic and rehabilitative foster care services. In order to accomplish this, DFCS is required to develop plans to recruit and develop mental health and dental service providers. Id. The Settlement requires the parties to negotiate annual implementation plans, which are also enforceable, to ensure that DFCS and DHS meet interim benchmarks each year. Id.
I. Legal Analysis Federal Rule of Civil Procedure 24(a)(2) provides as follows:
“Intervention of right. On timely motion, the court must permit anyone to intervene who: claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” “Federal courts should allow intervention where no one would be hurt and the greater justice could be attained.” Doe #1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001)(quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)). A party is entitled to intervene of right if it satisfies four key elements: 1) it files a timely motion to intervene; 2) the intervenor’s interest is “related to the property or transaction that forms the basis of the controversy” in the target case; 3) “the disposition of the case may impair or impede the potential intervenor’s ability to protect his/her interest; and 4) the
4

existing parties do not adequately represent the potential intervenor’s interest.” Id
(internal citations omitted). All four elements must be satisfied for intervention of right. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). This rule balances the due
process rights of a prospective intervenor with the existing litigants’ rights to efficient
and orderly disposition of their case. Id.
A. Timeliness of Motion to Intervene
Timeliness of a motion to intervene is analyzed using four factors:
(1) the length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before it petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as it knew or reasonably should have known of its interest in the case; (3) the extent of the prejudice that the would-be intervenor may suffer if intervention is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)
The primary concern when evaluating a motion to intervene is the impact on, and any
prejudice to, the original parties to the suit. Id.
Plaintiffs’ complaint was filed on March 10, 2010. The Olivia Y. plaintiffs filed
their motion to intervene on April 28, 2010. The defendants in this suit argue that the
motion is untimely because the Olivia Y. plaintiffs have sought intervention prematurely,
before a class has been certified.
This court finds the Olivia Y. plaintiffs’ motion to be timely. It was filed as soon
as they discovered they may have an interest in the underlying controversy, and before
the start of discovery.
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B. Intervenor’s Interest in the Subject Matter of the Instant Case In order to intervene, a party must have a “direct, substantial, [and] legally protectable” interest in the subject matter of the case. Espy, 18 F.3d at 1207. “This ‘interest test’ is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Id. The Olivia Y. plaintiffs argue that they have a judicially enforceable interest which is outlined in their consent decree with the State. The consent decree started in January of 2008 and runs for 5 years. It requires the State to provide specific medical and mental health assessments and services to foster children. Plaintiffs in the instant litigation argue that the Olivia Y. plaintiffs have a legally protectable interest in their own settlement, but not the subject matter of this case. This case involves different defendants–the Mississippi Division of Medicaid and the Mississippi Board of Mental Health–as opposed to the state agencies subject to the Olivia Y. Settlement–the Department of Human Services (“DHS”) and the Department of Children and Family Services (“DCFS”). Further, this suit involves distinct federal law–the Medicaid Act and the Americans with Disabilities Act. The Olivia Y. Settlement requires DHS and DCFS to provide certain levels of care to children in foster care. This court finds, nevertheless, that the Olivia Y. plaintiffs have an interest in the subject matter of the lawsuit. They comprise a subset of the putative plaintiffs in the instant case, children in foster care, or at risk of entering foster care, who need mental and behavioral health care services. The subject matter of this lawsuit overlaps the interests secured by the Olivia Y. plaintiffs in the Settlement they have obtained from
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the State. C. Impact of Disposition of Instant Case on Intervenor’s Ability to Protect Her Interest The third factor for deciding a motion to intervene requires the court to assess
whether the prospective intervenor “is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect his interest.” Espy, 18 F.3d at 1207.
The Olivia Y. plaintffs argue that the Troupe case may impact the location and availability of mental health services for children. It could create overlapping and conflicting orders regarding the manner in which the State must provide these services. Docket 9, p. 14. Without intervention, they say, there is a risk that the State will be ordered to provide services which are incompatible with its obligations to the Olivia Y. plaintiffs.
Although the rule does not require a prospective intervenor to show it will be bound by disposition of the current action, Edwards v. City of Houston, 78 F.3d 983, 1004 (5th Cir. 1996), the Fifth Circuit has most frequently analyzed this factor by evaluating the effect of stare decisis on a prospective intervenor’s rights. See Espy, 18 F.3d at 1207; see U.S. v. Tex. E. Transmission Corp., 923 F.2d 410 (5th Cir. 1991); see Woolen v. Surtran Taxicabs, Inc., 684 F.2d 324 (5th Cir. 1982).
The Olivia Y. plaintiffs’ “interests” have already been secured by a judicially enforceable order. The Olivia Y. plaintiffs’ Settlement was negotiated by the parties, and has been approved by the district court. The court has retained jurisdiction to enforce the agreement and appointed a monitor to oversee its implementation. An
7

adverse determination in this lawsuit does not threaten to lessen the State’s obligations
under that agreement. The consent decree provides an enforcement mechanism for
resolution of the States’s failure to comply as follows:
If Plaintiffs believe that Defendants have failed to comply with any obligation under this Plan or an annual implementation plan, Plaintiffs will, prior to seeking judicial action to enforce the terms of this Plan or an annual implementation plan, give written notice of non-compliance to the State. Within 30 calendar days of Plaintiffs’ notice of noncompliance, Defendants shall submit a written response to Plaintiffs. Plaintiffs agree to work in good faith with the State to agree on necessary corrective actions and avoid enforcement action, and may not initiate court action for 60 days from the date of Plaintiffs’ non-compliance notice. However, in case of an emergency posing an immediate threat to the health or safety of youths, Plaintiffs may omit the notice and cure requirements herein before seeking judicial action.
Should the State alter Medicaid services in a way which violates the Settlement, the
Olivia Y. plaintiffs may enforce the Settlement through judicial action.
The Olivia Y. plaintiffs also argue that a potential settlement agreement reached
by the parties in this suit might conflict with its existing consent decree. The instant plaintiffs, in response, cite U.S. v. Tex. E. Transmission Corp., 923 F.2d 410, 414 (5th
Cir. 1991), stating that vague or speculative impact on the hopeful intervenors is
insufficient to support intervention. In Tex. E. Transmission Corp., the Environmental
Protection Agency (“EPA”) brought suit against an interstate pipeline operator to
cleanup hazardous waste which leaked from the operator’s pipelines. The EPA and
pipeline company had negotiated a potential settlement, and the EPA filed a proposed
consent decree with the complaint. Several cleanup sites were located in
Pennsylvania.
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The State of Pennsylvania moved to intervene, citing an interest in protecting its
environment and its citizens. The State argued that it had an interest in enforcing its
State environmental laws, which potentially conflicted with or required more of the
pipeline company than the consent decree negotiated by the EPA. The consent decree
and its complex remedies, claimed Pennsylvania, might lead to a judicial determination
that the company did not also have to comply with Pennsylvania’s State environmental
laws.
The Fifth Circuit affirmed a denial of the motion to intervene. The Court stated,
“[s]uch a theoretical possibility cannot constitute the requisite practical impairment in
this case under the circuit’s emphasis on a practical reading.” Id.
The interests of the plaintiffs and the Olivia Y. plaintiffs in this case are
compatible. The Settlement states:
Each child four years old and older shall be provided with a mental health assessment by a qualified professional within 30 calendar days of foster care placement. Each foster child who reaches the age of four in care shall be provided with a mental health assessment within 30 calendar days of his/her fourth birthday. Each foster child shall receive recommended mental health services pursuant to his/her assessment. Settlement at 26.
The plaintiffs in the instant litigation specifically seek an injunction to ensure
greater availability of mental and behavioral health services in a home or community
setting. The plaintiffs also include in their complaint an assertion that the State is not
meeting its federally mandated obligation to provide adequate therapeutic foster care.
The Troupe putative class is broader than the class of Olivia Y. plaintiffs, including all
Medicaid eligible children regardless of whether they are in foster care. But the
demands of the Troupe complaint are wholly consistent with the Consent Decree with 9

respect to mental and behavioral health. The Olivia Y. plaintiffs have pointed out that existing members of the putative
class may intervene. See Woolen v. Surtran Taxicabs, Inc., 684 F.2d 324 (5th Cir. 1982). A subclass which meets the requirements for intervention may intervene, but in Woolen, the subclass had filed its own separate lawsuit asserting a claim for a different remedy than the larger class. The larger class in Woolen sought declaratory and injunctive relief, as well as damages, while the subclass was suing for damages. The subclass argued that the larger class had “abandoned any interest in the damage claims.” 684 F.2d at 333. Because of a lack of findings of fact by the district court, the Fifth Circuit remanded the case for reconsideration of its denial of the subclass’s motion to intervene. The Fifth Circuit noted the potential problems raised by two groups of plaintiffs seeking different remedies. Id at 333-334.
No such problem exists in this case. The instant putative class’s objectives are consistent with those of the Olivia Y. plaintiffs. Further, the Olivia Y. plaintiffs have already secured a remedy through their settlement agreement.
This court finds that the Olivia Y. plaintiffs have failed to satisfy this element of the test for intervention.
D. Are Intervenor’s Interests Adequately Represented? The prospective intervenor bears the burden of establishing the inadequacy of representation. Edwards v. Houston, 78 F.3d 983, 1005 (5th Cir. 1996). The necessary showing is minimal, but “it cannot be treated as so minimal as to write the requirement completely out of the rule.” Id. Representation is presumed to be adequate “when the
10

would-be intervenor has the same ultimate objective as the party to the lawsuit. Id. In order to overcome this presumption, the prospective intervenor “must show adversity of interest, collusion, or non-feasance on the part of the existing party. Id.
As mentioned above, the Olivia Y. plaintiffs have the same ultimate objective as the Troupe putative class. The prospective intervenors have alleged neither nonfeasance nor collusion by the instant plaintiffs. This court finds that the Olivia Y. plaintiffs have provided insufficient arguments to overcome the presumption of adequate representation.
The Troupe plaintiffs are represented by attorneys with a wealth of experience and a strong national reputation for prosecuting cases of this type, namely the Mississippi Youth Justice Project (“MYJP”), which is affiliated with the Southern Poverty Law Center; the Bazelon Center for Mental Health Law; and Attorney Robert McDuff. The MYJP has prosecuted multiple class actions in Mississippi pursuing reform of the Mississippi juvenile justice system. See Disability Rights Mississippi v. Lauderdale County, No. 4:09cv137 TSL-LRA (S.D. Miss. 2009); D.W., ex rel. Devonsha Fairley v. Harrison County, No. 1:09-cv-267 LG-RHN (S.D. Miss 2009); J.A. v. Barbour, No. 3:07cv-394 DPJ-FKB; Morgan v. Sproat, 432 F.Supp 1130 (S.D. Miss. 1977). The Bazelon Center for Mental Health Law and its Legal Director, Ira Burnim, have litigated extensively in the area of mental health and child welfare. Attorney Robert McDuff has 28 years of experience in civil rights litigation.
Finally, the Olivia Y. plaintiffs argue that because the putative class in this case is broader than a class of foster children, it must represent diverse interests of this
11

broad class, and cannot adequately represent the interests of foster children. This argument fails because the claims in the present case specifically focus on
Medicaid-eligible children’s rights to receive necessary home and community based mental health services. This is a focused pursuit, which could inure to the benefit of foster children needing these services.
II. Conclusion Both plaintiffs and defendants in this lawsuit oppose intervention by the Olivia Y. plaintiffs. They have pointed to the duplicative effort that would be involved and the increased complexity which will create unnecessary delays and increase the costs of litigation. At oral arguments, the plaintiffs’ attorneys said they are familiar with the Olivia Y. plaintiffs’ attorneys and are more than willing to keep them apprised of the progress and developments in the litigation or possible movement toward settlement. The Olivia Y. plaintiffs are not entitled to intervention of right, and based on the arguments and concerns presented by both the plaintiffs and defendants in this case, this court finds, too, that the Olivia Y. plaintiffs should not be allowed permissive intervention. Accordingly, this court denies the Olivia Y. plaintiffs’ motion to intervene [docket # 8]. SO ORDERED, this the 30th day of September, 2011.
s/ HENRY T. WINGATE UNITED STATES DISTRICT JUDGE CIVIL ACTION NO. 3:10-CV-153 HTW-LRA Findings of Fact and Conclusions of Law
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 Case 3:10-cv-00153-HTW-LRA Document 48 Filed 02/27/12 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

____________________________________

)

MARY TROUPE, et al.

)

)

Plaintiffs,

)

)

v.

)

CASE NO. 3:10cv153HTW-LRA

)

GOVERNOR HALEY BARBOUR, et al. )

)

Defendants.

)

____________________________________)

PLAINTIFFS’ NOTICE OF FINDINGS OF THE UNITED STATES’ INVESTIGATION OF THE STATE OF MISSISSIPPI’S SERVICE SYSTEM FOR PERSONS WITH MENTAL ILLNESS AND DEVELOPMENTAL DISABILITIES

The United States Department of Justice (“DOJ”) recently completed an investigation of

the State of Mississippi’s system for delivering services to individuals with mental illness and

developmental disabilities. This investigation included an assessment of Mississippi’s

compliance with the two federal laws that form the basis of Plaintiffs’ claims in this case: Title II

of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131-12134, as interpreted in

Olmstead v. L.C., 527 U.S. 581 (1999); and the Early and Periodic Screening, Diagnostic and

Treatment (“EPSDT”) provisions of the Medicaid portion of the Social Security Act, 42 U.S.C. §

1396 et seq. Plaintiffs’ claims in this case fall under both of these federal statutes. Complaint ¶¶

63-70 [ECF No. 1]. Plaintiffs hereby file with the Court the findings of DOJ’s investigation.

See Letter from Thomas E. Perez, Assistant Attorney General, DOJ, to Governor Haley R.

Barbour (Dec. 22, 2011) (attached as Exhibit A).

In a letter dated December 22, 2011, DOJ concluded that the State of Mississippi is

violating the ADA and the EPSDT provisions of the Medicaid Act by failing to provide

Case 3:10-cv-00153-HTW-LRA Document 48 Filed 02/27/12 Page 2 of 5
individuals with mental illness with appropriate community-based mental health services, resulting in unnecessary institutionalization. DOJ specifically noted that “hundreds of those who are unnecessarily institutionalized in Mississippi in violation of the ADA are children with disabilities.” Id. DOJ also concluded, among other things, that:
1) “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 [psychiatric residential treatment facilities], including the Specialized Treatment Facility (“STF”).” Id. at 30.
2) “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.[1] The State itself has found that MYPAC is equally or more effective than institutional placement. Despite this recognition, the State does not divert all children from segregated congregate placements and offer them effective home-based supports required by EPSDT. . . . 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
1 MYPAC, or Mississippi Youth Programs Around the Clock, is a Medicaid waiver program that offers communitybased services to a limited number of children as an alternative to traditional residential services.
2

Case 3:10-cv-00153-HTW-LRA Document 48 Filed 02/27/12 Page 3 of 5
support until after someone has received the most segregated treatment.” Id. at 30-
31. (footnotes omitted).
3) “[C]hildren in Mississippi’s institutional settings could be served in the community
if flexible, intensive home-based supports were available, and . . . 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.” Id. at 31.
Respectfully submitted, this 27th day of February, 2012,
/s/Vanessa Carroll VANESSA CARROLL, MBN 102736
vanessa.carroll@splcenter.org SHEILA A. BEDI, MBN 101652
sheila.bedi@splcenter.org JODY E. OWENS, II, MBN 102333
jody.owens@splcenter.org Southern Poverty Law Center 111 East Capitol Street Suite 280 Jackson, MS 39201 601-948-8882 (phone) 601-948-8885 (fax)
ROBERT B. MCDUFF, MBN 2532 rbm@mcdufflaw.com
767 North Congress Street Jackson, Mississippi 39202 601-969-0802 (phone) 601-969-0804 (fax)
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Case 3:10-cv-00153-HTW-LRA Document 48 Filed 02/27/12 Page 4 of 5 IRA BURNIM, D.C. Bar No. 406145* irab@bazelon.org The Bazelon Center for Mental Health Law 1101 15th St. NW, Suite 1212 Washington, D.C. 20005 202-467-5730 (phone) 202-223-0409 (fax) *pro hac vice
4

Case 3:10-cv-00153-HTW-LRA Document 48 Filed 02/27/12 Page 5 of 5

CERTIFICATE OF SERVICE

I, Vanessa Carroll, do hereby certify that on the 27th day of February 2012, I electronically filed the foregoing with the Clerk of the Court using the ECF system which sent notification of such filing to the following:

W. Wayne Drinkwater, Jr. BRADLEY ARANT BOULT CUMMINGS LLP P.O. Box 1789 Jackson, MS 39215-1789 wdrinkwater@babc.com
Jessica Polansky CHILDREN'S RIGHTS 330 Seventh Avenue, 4th Floor New York, NY 10001 jpolansky@childrensrights.org

Shirim Nothenberg CHILDREN'S RIGHTS 330 Seventh Avenue, 4th Floor New York, NY 10001 snothenberg@childrensrights.org
Harold Edward Pizzetta, III OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 Jackson, MS 39205-0220 hpizz@ago.state.ms.us

Wilson D. Minor MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 Jackson, MS 39205-0220 wmino@ago.state.ms.us

Shawn Stephen Shurden MISSISSIPPI PUBLIC SERVICE COMMISSION 501 N. West Street, Suite 201-A Jackson, MS 39201 shawn.shurden@psc.state.ms.us

Mary Jo Woods MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 Jackson, MS 39205 mwood@ago.state.ms.us

Anne Raish U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW - NYA Washington, DC 20530 anne.raish@usdoj.gov

THIS the 27th day of February, 2012,
/s/Vanessa Carroll VANESSA CARROLL

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

MARY TROUPE, ET AL.

PLAINTIFFS

v.

CIVIL ACTION NO. 3:10-cv-153-HTW-MTP

HALEY BARBOUR, ET AL.

DEFENDANTS

ORDER THIS MATTER is before the Court on the Motion to Intervene and to Vacate Protective Order [71] filed by Gannett River States Publishing Corporation d/b/a The Clarion Ledger (“The Clarion Ledger”). Having considered the Motion [71], record, and applicable law, the Court finds that the Motion [71] should be granted in part and denied in part.
BACKGROUND Plaintiffs filed this class action lawsuit on March 10, 2010, alleging that the State of Mississippi failed to provide intensive home-and-community-based services for children with mental health needs. (Complaint [1].) On April 8, 2011, the Department of Justice (“DOJ”) filed a Statement of Interest of the United States pursuant to 28 U.S.C. § 517 in support of Plaintiffs’ claims. (Statement of Interest [41].) In a letter dated December 22, 2011, the DOJ informed the State that “if the State declines to enter into voluntary compliance negotiations . . . the United States may then need to take appropriate action, including initiating a lawsuit.” (Letter [48-1] at 33.) On August 29, 2014, the DOJ and the State reached an agreement (“Agreement”), which addressed remedial measures the State would implement to assess and address the DOJ’s concerns and Plaintiffs’ claims. (Agreement [71-2].) As part of the Agreement, the State retained the Technical Assistance Collaborative
1

(“TAC”) to provide (1) assessments of permanent supportive housing for the mentally handicapped and (2) assessments of the State’s existing mental health services. ([71-2].) The State’s existing mental health services are at issue in this action, and therefore, will be referred to herein as the “Troupe Issues.” The TAC Report on the Troupe Issues was completed in March, 2015.1 On March 23, 2015, The Clarion Ledger requested that the Mississippi Department of Mental Health (“MDMH”) produce the TAC Report. (Clarion Ledger Request [71-5].) On March 26, 2015, MDMH denied the request. (MDMH Denial [71-6].)
On April 24, 2015, the State filed an unopposed Motion for Protective Order [68] in this action, requesting that the Court enter an order protecting the confidentiality of the TAC Report. The State desired to provide Plaintiffs the TAC Report to facilitate settlement discussions. However, before the State released the report to Plaintiffs, it moved for an order prohibiting the release of the report to anyone who is not a party, counsel, or expert participating in the confidential settlement negotiations. See Motion [68]. The State argued that the TAC Report was created for purposes of negotiation and should be protected as confidential pursuant to Local Uniform Civil Rule 83.7. Id. On May 6, 2015, the Court granted the Motion for Protective Order [68]. See Protective Order [70]. On June 24, 2015, The Clarion Ledger filed its Motion to Intervene and to Vacate Protective Order [71].2
1 TAC completed its report on permanent supportive housing for the mentally handicapped in October, 2015, and made it available to the public.
2 On April 6, 2015, The Clarion Ledger filed a complaint in the Chancery Court of Hinds County to compel MDMH to release the TAC Report. That action is apparently still pending.
2

ANALYSIS Motion to Intervene
In order to intervene under Federal Rule of Civil Procedure 24(a)(2), The Clarion Ledger must demonstrate that each of the following requirements are met:
(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair his ability to protect that interest; (4) the applicant’s interest must be inadequately represented by the existing parties to the suit. Taylor Communications Group, Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999). Regarding timeliness, The Clarion Ledger filed its Motion [71] less than two months after the Court entered the Protective Order [70]. The parties do not argue that The Clarion Ledger’s Motion is untimely, and there is no apparent prejudice to the parties related to the timing of the instant Motion. Additionally, that the motion to intervene was “filed prior to entry of judgment favors timeliness, as most of our law rejecting petitions for intervention as untimely concern motions filed after judgment was entered in the litigation.” Edwards v. City of Houston, 78 F.3d 983, 1001 (5th Cir. 1996). The Clarion Ledger must also have an interest relating to the property or transaction which is the subject of the action. “The Fifth Circuit has held that a news agency has a legal interest in challenging a confidentiality order.” State Farm Fire and Cas. Co. v. Hood, 266 F.R.D. 135, 141 (S.D. Miss. 2010) (citing Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001)). The third requirement is that The Clarion Ledger must be so situated that the disposition of this action may impair its ability to protect its interest. The Protective Order [70] conflicts with the right of public access; therefore, this requirement is met. Id. at 143.
3

The final requirement for intervention is that The Clarion Ledger’s interest must be inadequately represented by the existing parties to the suit. As the Fifth Circuit found in Ford, “[t]he original parties in this case jointly moved for the confidentiality order, advocating a position contrary to the interest of [the party seeking to intervene].” Ford, 242 F.3d at 241. Thus, this requirement is also met. The Court finds that all of the requirements to intervene under Fed. R. Civ. P. 24(a)(2) are met and The Clarion Ledger’s Motion [71] should be granted to the extent it seeks to intervene for the limited purpose of challenging the Protective Order [70]. Motion to Vacate Protective Order
Having granted The Clarion Ledger permission to intervene in order to challenge the Protective Order [70], the Court must determine whether the Protective Order [70] should be vacated or modified. The Clarion Ledger asserts that the TAC Report fits within the definition of “public records” found in Mississippi’s Public Records Act, and the Protective Order [70] is an impediment to The Clarion Ledger acquiring the public record. According to The Clarion Ledger, “the protective order at least frustrates Mississippi’s Public Records Act, if it does not render the Public Records Act useless.” (Brief [72] at 8.)
The Public Records Act places a duty on public entities to provide public access to public records. See Miss. Code. Ann § 25-61-2. However, legislatively-created exceptions to the Public Records Act include a provision exempting records privileged by law:
The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional or statutory law or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt for the provisions of this chapter.
4

Miss. Code Ann. § 25-61-11. Pursuant to the Public Records Act, a confidentiality order may affect a document’s
accessibility. Thus, the Court will examine the propriety of the Protective Order, which states, Statements made, and documents generated or exchanged by one of the parties to the negotiations or the Technical Assistance Collaborative (“TAC”) in the course of the settlement negotiations, including, but not limited to, the March 2015 TAC Mississippi Children’s Behavioral Health Needs Assessment, shall not be disclosed by any of the parties to the negotiations to anyone who is not a party, counsel, or an expert participating in the confidential settlement negotiations, unless the parties to the negotiations expressly agree otherwise in writing . . . .
See Protective Order [70]. Local Uniform Civil Rule 83.7(j) dictates that communications, information, and data
related to a mediation or settlement conference are confidential and not subject to disclosure. The Clarion Ledger argues that the TAC Report was not prepared for this action and is not a part of the settlement negotiations in this action. It further asserts that the TAC Report was prepared pursuant to the agreement between the State and DOJ, resulting from the DOJ’s separate and independent investigation of the State’s services. A review of the Agreement, however, reveals that its purpose is twofold–to assist in negotiations between the State and the DOJ and to assist in negotiations between the State and Troupe Plaintiffs.
The Agreement states, “[t]he State and the United States will include counsel for the Troupe plaintiffs in negotiations and attempt to resolve the Troupe claims within the agreement.” ([71-2] at 4.) The Agreement further states, “[t]he [TAC] consultant will assist the parties during settlement discussions by assessing the State’s existing service array, quality, and availability, and make recommendations for necessary improvements in order to address the issue in the Troupe litigation.” Id. at 5. In the Agreement, the State provided a framework for moving
5

forward in negotiations with the DOJ and Troupe Plaintiffs by setting specific goals and creating a process for resolving issues. The TAC Report was created for the purpose of addressing the issues presented in this action and assisting in the negotiations between the State and Troupe Plaintiffs.3 Thus, the TAC Report is eligible for protection as a confidential document, and the Court previously entered a confidentiality order which covers the TAC Report.
Nevertheless, “[i]t is well established that a district court retains the power to modify or lift confidentiality orders that it has entered.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 784 (3rd Cir. 1994).4 “The party seeking to modify the order of confidentiality must come forward with a reason to modify the order. Once that is done, the court should then balance the interests, including the reliance by the original parties to the order, to determine whether good cause still exists for the order.” Id. at 790. The Court must weigh the need for confidentiality of settlement related documents against the public’s right of access.
In determining the weight of the public’s interest in the TAC Report, the Court considered the fact that this action involves public entities such as the Mississippi Department of Mental Health and the fact that the TAC Report involves matters of legitimate public concern. These facts support The Clarion Ledger’s request to vacate the Protective Order. See Id. at 788 (“If a settlement agreement involves issues or parties of a public nature, and involves matters of
3 Furthermore, The Clarion Ledger’s argument that the TAC Report is not a part of the settlement negotiations in this action is unpersuasive considering the DOJ’s extensive involvement in this action. See, e.g., Statement of Interest [41]; October 19, 2011, Minute Entry; Statement of Interest [57].
4 The Clarion Ledger also points out that, pursuant to the Local Rules, the disclosure of confidential information is allowed under certain circumstances, including to prevent manifest injustice or when required by law. See L.U. Civ. R. 83.7(j)(2) & (4)(A).
6

legitimate public concern, that should be a factor weighing against entering or maintaining an order of confidentiality.”)
The TAC Report, however, was created and exchanged for purposes of settlement negotiations. This fact diminishes the public’s interest in the report. See United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 857 (2d Cir. 1998); Landco Equity Partners, LLC v. City of Colorado Springs, 259 F.R.D. 510, 513-14 (D. Colo. 2009) (finding that the “public’s interest in monitoring the government through use of settlement negotiation information is negligible, and a presumption of public access to settlement negotiation information in this case is practically nonexistent.”)
Balanced against the public’s interest in access to the TAC Report is the interest in the confidentiality of settlement related documents. “Public policy requires the courts to encourage the voluntary settlement of civil controversies.” Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 45 (D. Md. 1974). “There is no question that fostering settlement is an important Article III function of the federal district courts.” Glens Falls, 160 F.3d at 856. “Where a case is complex and expensive, and resolution of the case will benefit the public, the public has a strong interest in settlement.” Id. at 856-57. The public and the parties have an interest in the settlement of this case.
“Generally, confidentiality helps facilitate settlement and, in turn, conserves judicial and private resources . . . . Thus, public policy provides a basis for preserving the confidentiality of settlement agreements when practical.” In re Estate of Cole, 163 So. 3d 921, 926 (Miss. 2012). “[P]arties engaged in settlement talks are more likely to hold frank and open discussions regarding the strengths and weaknesses of their case in a confidential setting.” Landco, 259
7

F.R.D. at 514. “Conversely, failure to preserve confidentiality could discourage settlement.” In re Estate of Cole, 163 So. 3d at 926. “[F]ew cases would ever be settled if the press or public were in attendance at a settlement conference or privy to settlement proposals.” Glens Falls, 160 F.3d at 858.5
At this stage of litigation, while the parties are immersed in settlement negotiations, maintaining the Protective Order [70] is “likely in the long run to best serve the interest of the public and the parties alike: ‘[W]hatever the value of disclosure, it should not obscure the strong public interest in, and policy objectives furthered by, promoting settlement.’” Grove Fresh Distrib., Inc. v. John Labbatt Ltd., 888 F. Supp. 1427, 1441 (N.D. Ill. 1995) (quoting Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427, 486-87 (1991)). The Court finds that the parties should be given a reasonable opportunity to settle this case. This complex case has been ongoing for more than five years and the need for a fair and efficient resolution outweighs the public’s interest in accessing the TAC Report at this time.6
For these reasons, the Court finds that The Clarion Ledger’s Motion [71] should be denied to the extent it seeks to have the Court vacate or modify the Protective Order [70]. This ruling, however, is without prejudice to The Clarion Ledger’s right to request the Court to vacate
5 “In a perfect world, the public would be kept abreast of all developments in the settlement discussions of lawsuits of public interest. In our world, such disclosure would, as discussed above, result in no settlement discussions and no settlements.” Glens Falls, 160 F.3d at 856.
6 Additionally, The Clarion Ledger has not demonstrated that disclosure is necessary for any of the reasons set forth in L.U. Civ. R. 83.7(j)(4) (to prevent a manifest injustice, enforce a settlement, help establish a violation of criminal law, or prevent harm to the public health or safety).
8

or modify the Protective Order [70] once settlement negotiations are concluded. IT IS, THEREFORE, ORDERED that: 1. The Motion to Intervene and to Vacate Protective Order [71] is GRANTED in part and DENIED in part. 2. The Clarion Ledger’s request to intervene for the limited purpose of challenging the Protective Order is granted. 3. The Clarion Ledger’s request to have the Court vacate or modify the Protective Order is denied. SO ORDERED this the 28th day of August, 2015. s/ Michael T. Parker United States Magistrate Judge
9

 
 Case 3:10-cv-00153-HTW-MTP Document 70 Filed 05/06/15 Page 1 of 2

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

MARY TROUPE, et al.
vs.

PLAINTIFFS CIVIL ACTION NO. 3:10-cv-153-HTW-MTP

HALEY BARBOUR, et al.

DEFENDANTS

AGREED PROTECTIVE ORDER

This matter is before the Court on a Motion for Protective Order regarding

documents exchanged between the Plaintiffs, Defendants, and the United States

Department of Justice, appearing in this litigation pursuant to 28 U.S.C. § 517, in

the course of confidential settlement negotiations through which the parties to the

negotiations are attempting to settle this lawsuit and related claims asserted by the

United States.

IT IS HEREBY ORDERED:

1. There are ongoing confidential settlement negotiations governed by

this Court's rules;

2. Statements made, and documents generated or exchanged by one of

the parties to the negotiations or the Technical Assistance Collaborative ("TAC") in

the course of the settlement negotiations, including, but not limited to, the March

2015 TAC Mississippi Children's Behavioral Health Needs Assessment, shall not be

disclosed by any of the parties to the negotiations to anyone who is not a party,

counsel, or an expert participating in the confidential settlement negotiations,

unless the parties to the negotiations expressly agree otherwise in writing; and

Page 1 of 2

Case 3:10-cv-00153-HTW-MTP Document 70 Filed 05/06/15 Page 2 of 2
. I

3. Counsel for defendants shall provjde counsel for plaintiffs with a copy
of the March 201 5 TAC Mississippi Childr en's Behavioral Health Needs
Assessment, and said document s hall be subject to the foregoing terms of the
{S Court's order.
THIS the j,_ day of -~· 2015.

Agreed to May 5, 20 15:
-~
. Owens, II Cou.n el for Plaintiffs
/~~_;:g;;>
HaroJd E. Pi~ta1rn
Cou.nsel for Defendants

UNITED STATES MAGISTRATE JUDGE

Page 2 of 2

 
 Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 1 of 12

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

MARY TROUPE, et al. V. HALEY BARBOUR, et al.

PLAINTIFFS CIVIL ACTION NO. 3:10-CV-153-HTW-MTP
DEFENDANTS

REPORT AND RECOMMENDATIONS For the reasons stated below, the undersigned Magistrate Judge recommends that the Court grant Defendants’ Motion to Dismiss [15] Count One of Plaintiffs’ Complaint, and grant Plaintiffs’ Motion to Lift [29] the stay on discovery so that the Court can schedule a case management conference.
I. BACKGROUND Plaintiffs are a group of Medicaid-eligible children. The Plaintiff children allegedly suffer from a variety of behavioral, emotional, and mental health disorders. They claim that the state of Mississippi failed to provide them the intensive home- and community-based services medically necessary to address their mental health needs. Plaintiffs allege that they are forced to seek treatment in restrictive residentialtreatment facilities which sever connections with family, peers, exacerbating their mental disorders. Plaintiffs claim that Defendants’ failure to provide adequate homeand community-based mental health services violates the Medicaid Act,1 the

142 U.S.C. § 1396, et seq.

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 2 of 12
Americans with Disabilities Act,2 and the Rehabilitation Act.3 Defendants filed a motion to dismiss Count One of the Complaint – Plaintiffs’ claims under Section 1983 for alleged violation of 42 U.S.C. § 1396a(a)(43)(C), a provision of the Medicaid Act. The motion is ripe for review.
II. STANDARD OF REVIEW Defendants framed many of their arguments as attacks on Plaintiffs’ Article III standing and, therefore, this Court’s subject matter jurisdiction. See Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (Article III standing is an essential component of federal subject matter jurisdiction). Accordingly, Defendants argue that the Court should apply the standard of review applicable to motions under Rule 12(b)(1), allowing it to consider matters outside the pleadings. See Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 423 (5th Cir. 2013) (court is not bound by the pleadings when deciding a 12(b)(1) motion). But “[w]hen standing is challenged on the basis of the pleadings, [the Court] must accept as true all material allegations of the complaint and . . . construe the complaint in favor of the complaining party.” Ass’n of Am. Physicians & Surgeons v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010); see also Pennell v. San Jose, 485 U.S. 1, 7, 108 S. Ct. 849, 99 L. Ed. 2d 1 (1988). Regardless, Defendants’ standing argument is essentially an attack on the
242 U.S.C. § 12101, et seq. 329 U.S.C. § 701, et seq.
2

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 3 of 12
merits of Plaintiffs’ claim. Defendants argue that Plaintiffs suffered no injury because Defendants did not violate 42 U.S.C. § 1396a(a)(43)(C). This approach has been characterized as a “misunderstanding of standing.” Bruggeman v. Blagojevich, 324 F.3d 906, 909 (7th Cir. 2003). The “irreducible constitutional minimum” of standing is an injury in fact which is concrete and particularized, actual or imminent, caused by the defendant’s allegedly unlawful conduct, and likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); see also Bryant v. Holder, 809 F. Supp. 2d 563, 566 (S.D. Miss. 2011). Plaintiffs allege that they were injured by Defendants’ failure to provide a wide range of treatments required by 42 U.S.C. § 1396a(a)(43)(C). Defendants argue that the statute does not require them to provide the treatments. This is not an attack on Plaintiffs’ standing, but, rather, on the merits of their claim – akin to a motion under Rules 12(b)(6) or 12(c). See Bruggeman, 324 F.3d at 909.
The Court evaluates a “motion under Rule 12(c) for judgment on the pleadings using the same standard as a motion to dismiss under Rule 12(b)(6) for failure to state a claim.” Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010). “To survive a Rule 12(b)(6) motion to dismiss, [a plaintiff’s complaint] need only include a short and plain statement of the claim showing that the pleader is entitled to relief.” Hershey v. Energy Transfer Partners., L.P., 610 F.3d 239, 245 (5th Cir. 2010) (punctuation omitted). However, the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010) (punctuation omitted). The Court must
3

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 4 of 12

“accept all well-pleaded facts as true and construe the complaint in the light most

favorable to the plaintiff.” Id. But the Court will not accept as true “conclusory

allegations, unwarranted factual inferences, or legal conclusions.” Id.

III. DISCUSSION

A. Payment, Provision, or Both?

Plaintiffs’ claims stem from 42 U.S.C. § 1396a(a)(43), a subsection of the

Medicaid Act requiring states to provide for Early and Periodic Screening, Diagnostic,

and Treatment (“EPSDT”) services. At the heart of this dispute rests a fundamental

disagreement as to what this subsection requires of states which elect to participate

in Medicaid. Plaintiffs argue that the statute requires states to ensure that EPSDT

services are provided to Medicaid-eligible children, whether directly from the state or

through an intermediary. In Plaintiffs’ view, the state must directly provide medical

treatment to Medicaid-eligible children if there are no appropriate private treatment

options in their community. Defendants argue, though, that Medicaid is a payment

scheme which requires participating states to pay for EPSDT services provided to

Medicaid-eligible children.

The issues raised in Defendants’ Motion to Dismiss [15] largely depend upon the

interpretation of 42 U.S.C. § 1396a(a)(43). The Court must, therefore, examine the

statute before proceeding. The statute says:

(a) Contents. A State plan for medical assistance must –

(43) provide for –

* * *

4

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 5 of 12
(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in [42 U.S.C. § 1396d(r)], of the availability of early and periodic screening, diagnostic, and treatment services as described in [42 U.S.C. § 1396d(r)] and the need for age-appropriate immunizations against vaccinepreventable diseases,
(B) providing or arranging for the provision of such screening services in all cases where they are requested, [and]
(C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services . . . . 42 U.S.C. § 1396a(a)(43) (2013). Section 1396d(r) describes the EPSDT services required: (r) Early and periodic screening, diagnostic, and treatment services. The term “early and periodic screening, diagnostic, and treatment services” means the following items and services: (1) Screening services –
(A) which are provided – (i) at intervals which meet reasonable standards of medical . . . practices, as determined by the State after consultation with recognized medical . . . organizations involved in child health care . . . , and (ii) at such other intervals, indicated as medically necessary, to determine the existence of certain physical or mental illnesses or conditions; and * * *
(5) Such 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 covered under the State plan.
5

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 6 of 12
42 U.S.C. § 1396d(r)(1), (5) (2013). Section 1396a(a)(43) imposes three requirements on participating states.
Subsection (43)(A) requires the state to inform all Medicaid-eligible children of the availability of EPSDT services. 42 U.S.C. § 1396a(a)(43)(A). Subsection (43)(B) requires the state to provide or arrange for the provision of screening services where they are requested. 42 U.S.C. § 1396a(a)(43)(B). And Subsection (43)(C) requires the state to arrange for corrective treatment of conditions discovered through the screening provided under Subsection (43)(B), provided either directly from the state or through referral to a third party. 42 U.S.C. § 1396a(a)(43)(C). As another District Court observed:
[T]o be clear, these provisions do not require the State to become a “direct medical provider,” as the State asserts. Rather, these provisions require the State to ensure that Medicaid-eligible children receive “screening service” and “corrective treatment” under certain circumstances. To satisfy its obligations, the State may either provide services directly or hire others to do so. John B. v. Emkes, 852 F. Supp. 2d 944, 951-52 (M.D. Tenn. 2012). This interpretation accords with the plain text of the law, as well as its object and policy. See United States Nat’l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 454-55, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993) (providing rules of statutory construction). Indeed, the Medicaid Act defines “medical assistance” as “payment of part or all of the cost of the following care and services or the care and services themselves, or both . . . .” 42 U.S.C. § 1396d(a) (2013). Section 1396a(a)(43) was “designed to assure the availability and accessibility of health care resources for the
6

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 7 of 12
treatment, correction and amelioration of the unhealthful conditions of individual Medicaid recipients under the age of twenty-one.” S.D. v. Hood, 391 F.3d 581, 586 (5th Cir. 2004). Permitting states to arrange for treatment by either direct provision or referral to third parties broadens access to the services, furthering the law’s purpose.
Defendants strenuously argue, though, that Medicaid “provides payment, not services.” Defendants cited a number of cases in support of this argument, the chief of which is Equal Access for El Paso, Inc. v. Hawkins, 562 F.3d 724, 727 (5th Cir. 2009). There, the Fifth Circuit examined the Medicaid Act’s “reasonable promptness” provision, which requires states to furnish “medical assistance” with reasonable promptness to all Medicaid-eligible individuals. Id. at 727; 42 U.S.C. § 1396a(a)(8). The Court held that the Medicaid Act defines “medical assistance” as “payment of part or all of the cost of . . . care and services . . . .” Equal Access, 562 F.3d at 727 (citing 42 U.S.C. § 1396d(a) (2009)). States, therefore, were only required to pay for services with reasonable promptness, rather than ensure that services were rendered with reasonable promptness. Id. at 727-30.
There are two reasons why Equal Access is inapplicable here. First, Congress subsequently amended the Medicaid Act’s definition of “medical assistance.” As noted above, the current definition is “payment of part or all of the cost of the following care and services or the care and services themselves, or both . . . .” 42 U.S.C. § 1396d(a) (2013). Second, Equal Access addresses the Medicaid Act’s reasonable promptness provision, 42 U.S.C. § 1396a(a)(8), rather than the EPSDT provision, 42 U.S.C. § 1396a(a)(43). Subsection (a)(8) requires states to “provide that all individuals wishing
7

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 8 of 12
to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness . . . .” 42 U.S.C. § 1396a(a)(8). In comparison, Subsection (a)(43) requires states to “provide for” informing Medicaid-eligible children about available EPSDT benefits, providing or arranging for screening services where requested, and then arranging for treatment of problems disclosed by such screening. 42 U.S.C. § 1396a(a)(43)(A)-(C). The EPSDT provision is not dependant upon the definition of “medical assistance,” and it allows no room for the claim that Medicaid is a payment-only scheme in this context.
It is not necessary for the Court to examine each case cited by Defendants in support of their argument that the Medicaid Act only requires payment for services. Each case cited by Defendants is distinguishable,4 and the plain text of Subsection (a)(43) is sufficient to demonstrate that states must provide notice of the availability of EPSDT services, provide for or arrange screening services where requested, and then arrange for treatment either directly through Medicaid or a third party. 42 U.S.C. § 1396a(a)(43)(A)-(C).
4All of the cases cited by Defendants predate the current definition of “medical assistance,” and most of them do not concern 42 U.S.C. § 1396a(a)(43), the subsection at issue here. See S.D. v. Hood, 391 F.3d 581, 586 (5th Cir. 2004) (predates the amendment, concerns Subsection (a)(10)); Brown v. Tenn. Dep’t of Fin. & Admin., 561 F.3d 542, 545 (6th Cir. 2009) (predates the amendment, concerns several subsections other than (a)(43)); Mandy R. v. Owens, 464 F.3d 1139, 1146 (10th Cir. 2006) (predates amendment, concerns Subsections (a)(8), (10), (30)(A)); Westside Mothers v. Olszewski, 454 F.3d 532, 540-41 (6th Cir. 2006) (predates amendment, concerns Subsections (a)(8), (10)); Bruggeman, 324 F.3d at 910 (predates amendment, concerns Subsection (a)(8)); Rite Aid, Inc. v. Houstoun, 171 F.3d 842, 845 (3rd Cir. 1999) (predates amendment, concerns Subsection (a)(30)(A)).
8

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 9 of 12
B. Failure to State a Claim Having established what 42 U.S.C. § 1396a(a)(43) requires, the Court may now
determine whether Plaintiffs alleged sufficient facts to demonstrate that Defendants violated it. Importantly, Plaintiffs do not allege that Defendants failed to provide notice or screening, as required by Subsections (43)(A) and (B). Their claims stem solely from Subsection (43)(C), which requires that the state arrange for corrective treatment of all conditions disclosed by a screening requested under Subsection (43)(B). To determine whether Plaintiffs alleged a violation of Subsection (43)(C), the Court must determine whether they alleged that a screening was requested and provided under Subsection (43)(B).
Plaintiffs did not allege that they requested screening pursuant to Subsection (43)(B). In fact, they conceded during oral argument before the District Judge on August 19, 2011, that they have not requested anything from the Defendants – screening, treatment, or otherwise. Subsection (43)(B) only requires that the state “provid[e] or arrang[e] for the provision of . . . screening services in all cases where they are requested . . . .” 42 U.S.C. § 1396a(a)(43)(B). If Plaintiffs never requested a screening, Defendants had no obligation to provide one.
Subsection (43)(C) requires that the state arrange for treatment of conditions disclosed by a screening provided pursuant to Subsection (43)(B). 42 U.S.C. § 1396a(a)(43)(C). If Plaintiffs never requested and received a screening under Subsection (43)(B), then Subsection (43)(C) imposes no requirement on the Defendants. In other words, if Plaintiffs never requested and received a Subsection (43)(B)
9

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 10 of 12
screening, then there can be no “need for [corrective treatment] disclosed by such child health screening . . . .” 42 U.S.C. § 1396a(a)(43)(C).
Plaintiffs argue that their failure to request a screening is irrelevant because the infrastructure to provide the screening does not exist within Mississippi’s Medicaid system. But the statute contains no exception to Subsection (43)(B)’s requirement that a Medicaid-eligible child request EPSDT screening services, and Subsection (43)(C) – according to its plain language – only requires the state to arrange for corrective treatment of conditions disclosed by the screening requested and provided pursuant to Subsection (43)(B).
Plaintiffs also argue that this interpretation of the statute is contrary to its intended purpose. The Court disagrees. If the statute were intended to require the state to seek out all Medicaid-eligible children and provide screenings and treatment without any concomitant responsibility on the part of the benefits-recipient to request services – as Plaintiffs argue – then there would be no need for the notice required by Subsection 43(A). Indeed, Section 1396a(a)(43) was “designed to assure the availability and accessibility of health care resources . . . .” S.D., 391 F.3d at 586 (emphasis added). Requiring the statute’s intended beneficiaries to request EPSDT services does not erect an obstacle to the availability and accessibility of such services, particularly in light of Subsection (43)(A)’s notice requirement. Plaintiffs have not alleged that Defendants violated Subsection (43)(A) – just Subsection (43)(C).
For these reasons, the undersigned Magistrate Judge concludes that Plaintiffs failed to state a claim for violation of 42 U.S.C. § 1396a(a)(43)(C) and recommends that
10

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 11 of 12
the District Judge grant Defendants’ Motion to Dismiss [15] Count One of the Complaint – Plaintiffs’ Section 1983 claim – with prejudice. C. Motion to Lift Stay [29]
The undersigned Magistrate Judge also recommends that Plaintiffs’ Motion to Lift [29] the stay on discovery should be granted once Defendants’ dispositive motion has been addressed. The Magistrate Judge will then schedule a case management conference so that the balance of the case may proceed.
IV. NOTICE OF RIGHT TO OBJECT In accordance with Local Rule 72(a)(3) and 28 U.S.C. § 636(b)(1), any party may file and serve written objections to this recommendation within fourteen days of being served with a copy of it. Any party filing such objections must provide copies to the District Judge, Magistrate Judge, and opposing party. The District Judge may accept, reject, or modify the Magistrate Judge’s recommendations in whole or part. He may also receive further evidence or remand the matter to the Magistrate Judge with further instructions. Failure to file written objections to this report and recommendation within fourteen days after being served with a copy of it shall bar a party, except upon grounds of plain error, from attacking on appeal the uncontested conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
This the 23rd day of August, 2013. 11

Case 3:10-cv-00153-HTW-MTP Document 55 Filed 08/23/13 Page 12 of 12 s/Michael T. Parker UNITED STATES MAGISTRATE JUDGE
12

 
 Case 3:10-cv-00153-HTW-MTP Document 82 Filed 12/17/15 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

____________________________________

)

J.B., L.P., L.M., L.S., by and through their )

next friends,

)

)

Plaintiffs,

)

)

v.

)

CASE NO. 3:10cv153HTW-MTP

)

GOVERNOR PHIL BRYANT, et al.

)

)

Defendants.

)

____________________________________)

NOTICE OF TERMINATION OF SETTLEMENT NEGOTIATIONS BETWEEN PLAINTIFFS AND THE UNITED STATES AND DEFENDANTS
AND REQUEST FOR RULINGS AND A SCHEDULING CONFERENCE
The settlement negotiations between the United States and the State of Mississippi, and between the Plaintiffs and the Defendants, have terminated. Accordingly, Plaintiffs request that the Court:
1. Render a decision on Defendants’ Motion to Dismiss (ECF No. 15) and Plaintiffs’ Motion to Lift Stay of Discovery (ECF No. 29).
2. In connection with Plaintiffs’ Motion to Lift Stay of Discovery (ECF No. 29), take notice of Magistrate Judge Parker’s statement in his Report and Recommendation (ECF No. 55) that Defendants’ purported jurisdictional defense to Count I, the EPSDT claim, “is not an attack on Plaintiffs’ standing, but, rather, on the merits of their claim – akin to a motion under Rules 12(b)(6) or 12(c).” Report and Recommendation at 3, (ECF No. 55).
3. Schedule a case management conference with respect to Count II, Plaintiffs’ Americans with Disabilities Act claim.

Case 3:10-cv-00153-HTW-MTP Document 82 Filed 12/17/15 Page 2 of 7
Procedural History Plaintiffs, by and through their next friends, filed this action on March 10, 2010 against Defendants Phil Bryant, Governor of Mississippi; David J. Dzielak, Executive Director of the Mississippi Division of Medicaid; Diana Mikula, Director of the Mississippi Department of Mental Health, and the Mississippi Board of Mental Health alleging violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131-12134, as interpreted by Olmstead v. L.C., 527 U.S. 581 (1999); and the Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) provisions of the Medicaid portion of the Social Security Act, 42 U.S.C. § 1396 et seq. (ECF No. 1). Defendants Bryant and Dzielak filed a Motion to Dismiss Plaintiffs’ EPSDT claim on May 27, 2010 (ECF No. 15), and Magistrate Judge Anderson entered an order that same day staying discovery in the case. (ECF No. 19). After completing briefing on the State’s Motion to Dismiss, the parties agreed to enter into formal mediation on August 10, 2010. The parties engaged in mediation for close to one year, but were unable to reach a mutually-agreeable settlement. On July 15, 2011, Plaintiffs notified this Court that the parties had been unable to reach a settlement agreement and requested that this Court schedule oral argument to hear all of the outstanding motions in this case. Notice on Mediation, (ECF No. 42). This Court heard oral arguments on several pending motions, including Defendants’ Motion to Dismiss (ECF No. 15) and Plaintiffs’ Motion to Lift Stay of Discovery (ECF No. 29) on August 19, 2011 and October 19, 2011. Magistrate Judge Parker issued a Report and Recommendation (ECF No. 55) on August 23, 2013 recommending that the Court grant Defendants’ Motion to Dismiss Count I and grant Plaintiffs’ Motion to Lift Stay of Discovery. Plaintiffs timely objected to Magistrate Judge
2

Case 3:10-cv-00153-HTW-MTP Document 82 Filed 12/17/15 Page 3 of 7
Parker’s recommendation to dismiss Count I of the Complaint. See Partial Objection to the Report and Recommendation (ECF No. 56).
On December 22, 2011, the United States Department of Justice (“DOJ”) completed an investigation into Mississippi’s mental health system and issued a letter detailing its findings that Mississippi is violating the ADA and the EPSDT provisions of the Medicaid Act by failing to provide children with mental illness with appropriate community-based mental health services, resulting in unnecessary institutionalization. See Plaintiffs’ Notice at 1-2 (ECF No. 48). DOJ specifically noted that “hundreds of those who are unnecessarily institutionalized in Mississippi in violation of the ADA are children with disabilities.” Id. (quoting ECT No. 48-1, Letter from T. Perez, Assistant Attorney General, DOJ, to Governor Haley R. Barbour (Dec. 22, 2011)).
DOJ also concluded, among other things, that: 1) “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 [psychiatric residential treatment facilities], including the Specialized Treatment Facility (“STF”).” Id. 2) “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. The State itself has found that
3

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MYPAC is equally or more effective than institutional placement. Despite this recognition, the State does not divert all children from segregated congregate placements and offer them effective home-based supports required by EPSDT. . . . 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.” Id. at 2-3. 3) “[C]hildren in Mississippi’s institutional settings could be served in the community if flexible, intensive home-based supports were available, and . . . 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.” Id. at 3. In August 2014, Plaintiffs’ counsel were notified that Defendants and DOJ had reached an agreement to engage in a discussion to settle the DOJ’s December 22, 2011 findings. Defendants then sent Plaintiffs’ counsel a letter in February 2015 inviting Plaintiffs to join DOJ in settlement discussions. The parties, including DOJ, exchanged several drafts of settlement proposals up through October 2015 but were unable to reach an agreement. Because the parties have reached an impasse, Plaintiffs and DOJ have terminated settlement negotiations with Defendants.
Need for Resolution of Outstanding Motions Several motions remain pending before this Court, and Plaintiffs submit that the resolution of these motions and the initiation of discovery are necessary before the parties can
4

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revisit settlement negotiations. Magistrate Judge Parker issued a Report and Recommendation on Defendants’ Motion to Dismiss on August 23, 2013, and Plaintiffs filed a timely partial objection to the Report and Recommendation. (ECF No. 56). Defendants’ Motion to Dismiss is therefore before the Court and ripe for review; Plaintiffs request that the Court render a decision on Defendants’ Motion to Dismiss (ECF No. 15) and Plaintiffs’ Motion to Lift Stay of Discovery (ECF No. 29).
In addition, Plaintiffs request that this Court take notice of Magistrate Judge Parker’s statement in his Report and Recommendation (ECF No. 55) that Defendants’ purported jurisdictional defense to Count I, the EPSDT claim, “is not an attack on Plaintiffs’ standing, but, rather, on the merits of their claim – akin to a motion under Rules 12(b)(6) or 12(c). Report and Recommendation at 3, (ECF No. 55). Because Defendants have not raised a valid jurisdictional defense to Count I, Defendants should not have the benefit of a Local Rule 16(b)(3) discovery stay with respect to either the EPSDT or the ADA claim. See also Pls’ Mem. in Support. of Mot. to Lift Stay at 2-6 (ECF No. 30).
Moreover, Plaintiffs request a case management conference on Count II, the ADA claim. As noted in Plaintiffs’ Motion to Lift Stay of Discovery (ECF No. 29), Defendants have requested dismissal of the EPSDT claim only (and only on behalf of Defendants Bryant and Dzielak). Defendants have not raised any defense, jurisdictional or otherwise, to Plaintiffs’ ADA claim. See Pls.’ Mem. in Support of Mot. to Lift Stay at 6 (ECF No. 30). Accordingly, Defendants are not entitled to a discovery stay under Local Rule 16(b)(3) with respect to the ADA claim. Id. This Court should schedule a case management conference so that Plaintiffs may proceed with taking discovery on Count II of their Complaint.
Respectfully submitted, this 17th day of December, 2015.
5

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/s/ Jody E. Owens, II Jody E. Owens, II, MSB No. 102333 Brooke McCarthy, MS Bar No. 104930 Southern Poverty Law Center 111 E. Capitol Street, Suite 280 Jackson, Mississippi 39201 601-948-8882 (phone) 601-948-8885 (fax) Ira Burnim, D.C. Bar No. 406145 The Bazelon Center for Mental Health Law 1101 5th Street NW, Suite 1212 Washington, D.C. 20005 202-467-5730 (phone) 202-223-0409 (fax) Admitted pro hac vice
6

Case 3:10-cv-00153-HTW-MTP Document 82 Filed 12/17/15 Page 7 of 7 CERTIFICATE OF SERVICE
I, Jody E. Owens, II, hereby certify that a true and correct copy of the foregoing document was filed electronically. Notice of this filing will be sent by electronic mail to all parties by the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
SO CERTIFIED, this 17th day of December, 2015. s/Jody E. Owens, II Jody E. Owens, II, MS Bar # 102333
7

 
 Case 3:10-cv-00153-HTW-MTP Document 68 Filed 04/24/15 Page 1 of 7

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

MARY TROUPE, et al.

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:10-cv-153-HTW-MTP

HALEY BARBOUR, et al.

DEFENDANTS

MOTION FOR PROTECTIVE ORDER

Defendants David J. Dzielak, Director of the Mississippi Division of

Medicaid, and Diana S. Mikula, Executive Director of the Mississippi Department

of Mental Health, sued solely in their official capacities (“defendants” or “the

State”), hereby move this Court, unopposed by plaintiffs, for a protective order and

state:

1. The plaintiffs, defendants, and the United States Department of Justice (“DOJ”)1 are currently voluntarily engaged in complex, structured,

confidential settlement negotiations encompassing this five-year old lawsuit

involving alleged deficiencies in the State’s system of providing children’s mental

health services asserted by plaintiffs and DOJ, and other broad-based federal law

claims separately asserted by DOJ relating to the State’s mental healthcare system.

2. The intensive confidential settlement negotiations have proceeded for

approximately the past year under agreements between the parties. The

negotiations have involved numerous settlement communications, conference calls,

1 DOJ has appeared as an “interested party” in support of plaintiffs’ claims in this lawsuit pursuant to 28 U.S.C. § 517 [see Docket Nos. 41 & 57], and separately asserted various putative claims it intends to pursue against the State which encompass plaintiffs’ claims regarding children’s mental health services [see Docket No. 48].

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in-person meetings, draft proposed agreements, and countless hours of time and effort expended by government officials and attorneys. The negotiations have been undertaken with the expectation that plaintiffs would participate when appropriate given the overlapping claims regarding children’s mental health services asserted by plaintiffs and DOJ. The express purpose of the negotiations between plaintiffs, defendants, and DOJ has been to reach one global settlement resolving plaintiffs’ claims in this lawsuit, DOJ’s positions asserted in support of plaintiffs’ claims in this lawsuit, and DOJ’s threatened claims against the State. Future conference calls and in-person meetings for further negotiations are scheduled.
3. Significantly, the confidential settlement negotiations have been facilitated through the assistance of Technical Assistance Collaborative (“TAC”), a well-recognized expert in the field of state mental health services and compliance with federal law.
4. The State and DOJ have proceeded with the negotiations facilitated by TAC with the express understanding that the negotiations, including their communications and information exchanged by and between themselves and TAC, would remain confidential pursuant to agreements and this Court’s rules.
5. Recently, in March 2015, TAC produced a comprehensive “Mississippi Children’s Behavioral Needs Assessment” (the “March 2015 TAC Report”) providing its findings and recommendations regarding the State’s children’s mental health services for the parties’ use in evaluating their respective claims and to further the ongoing negotiations.
-2-

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6. In February 2015, counsel for plaintiffs were provided with a draft of TAC’s report regarding the State’s children’s mental health services by DOJ, however, plaintiffs have not yet been provided a copy of the final March 2015 TAC Report. However, plaintiffs have expressed a desire to receive a copy of the final March 2015 TAC Report.
7. Plaintiffs and the State agree the plaintiffs’ counsel should be provided a copy of the final March 2015 TAC Report upon issuance of a protective order and further settlement negotiations, including any documents created or exchanged during the course of the negotiations, will remain confidential as governed by this Court’s rules, including Local Rule 83.7.2 The protective order should further provide the March 2015 TAC Report and any other confidential settlement communications, information and documents will not be provided to anyone who is not a party to the negotiations, counsel, or an expert participating in the confidential settlement negotiations unless all parties agree otherwise in writing.
8. The requested protective order will protect the confidentiality of the
2 Rule 83.7, enacted pursuant to the Alternative Dispute Resolution Act of 1998, “is designed to provide access to effective ADR techniques and to encourage mutually satisfactory resolutions of disputes in all stages of civil litigation.” L.U.R.Civ. 83.7(a). The Rule applies to “any activity in which the parties mutually engage by consent” to resolve putative claims without the necessity of trial, including mediation activities “in which impartial persons assist parties in reaching settlements . . . facilitate communications between the parties and assist them in their negotiations[, and] [w]hen appropriate . . . may also offer objective evaluations of cases and may make settlement recommendations.” L.U.R.Civ. 83.7(d)(1)-(2). And, importantly, to further alternative dispute resolution activities’ purposes under the Rule, settlement related communications are confidential, not evidence in any proceeding, and not subject to compelled disclosure absent extremely limited overriding circumstances. L.U.R.Civ. 83.7(j).
-3-

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settlement negotiations which have taken place to date, and the further negotiations contemplated by the parties, and allow the parties to fully and frankly pursue an amicable resolution of the complex claims involved without further involvement by the Court.
9. Additionally, a protective order is appropriate and necessary because this Court is the proper authority to determine the applicability of the confidentiality provisions of its Local Rules to settlement negotiations involving a lawsuit pending before it. As of this writing, at least one outside party has sought access to the March 2015 TAC Report. In March 2015, a reporter from The ClarionLedger requested a copy of the March 2015 TAC Report from the Mississippi Department of Mental Health putatively pursuant to the Mississippi Public Records Act. The Department denied access to the March 2015 TAC Report. Thereafter, the newspaper filed a Complaint against the Department in the Chancery Court of Hinds County seeking a copy of the March 2015 TAC Report and citing the lack of this Court’s entry of a protective order as grounds for the relief requested. [See Complaint in Gannett River States Publishing Corporation d/b/a The ClarionLedger v. Mississippi Department of Mental Health, Cause No. G2015-466 W/4, affixed hereto as Ex. “1”].3
10. Absent the requested protective order, the State will be unable to
3 As of this writing, the Department has been served with the newspaper’s Complaint but no further proceedings have taken place or been set in the newspaper’s lawsuit. The Department’s responsive pleading is currently due May 6, 2015.
-4-

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furnish plaintiffs’ counsel with a copy of the March 2015 TAC Report. Further, the parties’ ongoing confidential settlement negotiations – in which the State only agreed to proceed based upon their confidential nature – will likely come to an abrupt end.
11. Pursuant to Local Rule 7(b)(10), undersigned counsel has discussed defendants’ motion with counsel for plaintiffs, understands plaintiffs have no objection to the relief requested, and intends to submit a proposed protective order to the Court to which plaintiffs have agreed. Further, given defendants’ motion is unopposed by plaintiffs, and the facts and authorities supporting this motion are fully set forth above, defendants request the Court waive the requirement of submitting a separate memorandum of authorities as required by Local Rule 7(b)(4).
FOR THESE REASONS, defendants request the Court enter a protective order in connection with the parties’ ongoing confidential settlement negotiations finding and providing:
(1) There are ongoing confidential settlement negotiations governed by this Court’s rules;
(2) Statements made, and documents generated or exchanged by one of the parties to the negotiations or the Technical Assistance Collaborative (“TAC”) in the course of the settlement negotiations, including, but not limited to, the March 2015 TAC Mississippi Children’s Behavioral Health Needs Assessment, shall not be disclosed by any of the parties to the negotiations to anyone who is not a party,
-5-

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counsel, or an expert participating in the confidential settlement negotiations, unless the parties to the negotiations expressly agree otherwise in writing;
(3) Counsel for defendants shall provide counsel for plaintiffs with a copy of the March 2015 TAC Mississippi Children’s Behavioral Health Needs Assessment, and said document shall be subject to the foregoing terms of the Court’s order; and
(4) Any further relief deemed appropriate. THIS the 24th day of April, 2015.
Respectfully submitted, DAVID J. DZIELAK in his official capacity as Director of the Mississippi Division of Medicaid, and DIANA S. MIKULA, in her official capacity as Executive Director of the Mississippi Department of Mental Health
/s Harold E. Pizzetta, III Harold E. Pizzetta, III (Bar No. 99867) Assistant Attorney General Office of the Attorney General P.O. Box 220 Jackson, MS 39205 Telephone No. (601) 359-3680 Facsimile No. (601) 359-2003 hpizz@ago.state.ms.us
-6-

Case 3:10-cv-00153-HTW-MTP Document 68 Filed 04/24/15 Page 7 of 7 CERTIFICATE OF SERVICE
I, Harold E. Pizzetta, III, Assistant Attorney General for the State of Mississippi, do hereby certify that on this date, I electronically filed the foregoing document with the Clerk of Court using the ECF system which sent notification of such filing to all counsel of record.
THIS the 24th day of April, 2015. /s Harold E. Pizzetta, III Harold E. Pizzetta, III
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 Case 3:10-cv-00153-HTW-MTP Document 57 Filed 09/06/13 Page 1 of 5

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

JACKSON DIVISION 


J.B., L.P., L.M., and L.S., by and through )

their next friends,

)

Plaintiffs,

)

)

)

v.

) CASE NO. 3:10-CV-153-HTW-MTP

)

)

GOVERNOR PHIL BRYANT, et al.,

)

Defendants.

DEPARTMENT OF JUSTICE STATEMENT OF INTEREST1 The United States previously filed a Statement of Interest in this matter because the litigation implicates the proper interpretation of the Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) provisions of Title XIX of the Social Security Act (“Medicaid Act”), 42 U.S.C. 1396 et seq., and title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101 et seq.. The Magistrate Judge assigned to this matter recently issued a Report and Recommendation in which he recommended granting Defendants’ Motion to Dismiss Count One of the Plaintiffs’ Complaint. In reaching his recommendation, the Magistrate interpreted the language of the EPSDT provisions of the Medicaid Act. It is again in the United States’ interest to submit a Statement of Interest to clarify the meaning of the statute so that it may be applied as intended by Congress and as interpreted by the federal regulatory agencies charged with its implementation.

1 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”

Case 3:10-cv-00153-HTW-MTP Document 57 Filed 09/06/13 Page 2 of 5
EPSDT Screening Requests The Magistrate’s recommendation relies on his interpretation of 42 U.S.C. § 1396a(a)(43)(B), the requirement that states screen EPSDT-eligible children to determine whether they need treatment and what treatment they needed. He found that the Plaintiffs had not stated a claim because they “fail[ed] to request the screening” that precedes the State’s obligation to provide treatment. Magistrate Judge’s Report and Recommendations, Docket No. 55, at 10.2 According to the plain language of the statute, this screening obligation is incumbent upon a state only when it is requested. However, a child’s visit to a medical professional to address a behavioral problem is in fact a screening encounter related to that behavioral problem. The family need not use the term “EPSDT screen” when requesting such services. Rather, as both the federal and state agencies administering the Medicaid Act have made clear, any such visit or contact with a qualified medical professional is sufficient to satisfy EPSDT’s screening requirement. Plaintiffs have pled that they presented themselves to medical professionals and received mental health services. See Complaint ¶¶ 45-46 (J.B. was in custody of the Department of Mental Health at the time the Complaint was filed and had an intake interview at the state’s treatment facility, including an examination by a physician), ¶53 (L.P. entered a state hospital and was transferred to a secure treatment facility), ¶55-57 (L.M. was hospitalized for mental health treatment and committed to the state hospital for five months), and ¶61 (L.S. received limited outpatient counseling and medication management). These contacts with medical professionals constitute screenings for the purposes of EPSDT. The Department of Health and Human Services’ regulations define screenings as “regularly scheduled examinations and evaluations of the general physical and mental health,
2 To the extent that the Court finds that alleging a request for a screening is necessary to state a claim under EPSDT, that could easily be rectified with the filing of an amended complaint.
2 


Case 3:10-cv-00153-HTW-MTP Document 57 Filed 09/06/13 Page 3 of 5
growth, development, and nutritional status of infants, children, and youth.” 42 C.F.R. § 441.56(b)(2001). Guidance from the Centers for Medicare and Medicaid Services (“CMS”), the federal agency charged with administering the Medicaid Act, indicates that EPSDT screening requests need not be different than other interactions with medical providers. In 2001, CMS explained, “[W]e have long considered any encounter with a health care professional practicing within the scope of his/her practice [to be] inter-periodic screening.” CMS Letter to State Medicaid Directors #01-006, 11 (Jan. 10, 2001) (attached as Exhibit 1).3 Similarly, the State of Mississippi has created both a periodic schedule for EPSDT screening, and it has also identified visits to the doctor other than for periodic screens as “interperiodic screens.” See Mississippi Division of Medicaid, MS Cool Kids FAQs, available at: https://msmedicaid.acsinc.com/msenvision/AMA_ADA_licenseAgreement.do?strUrl=MS%20Cool%20Kids%28EPSD T%29&method=accept. Thus, both the federal government and the State of Mississippi recognize that when a Medicaid eligible child visits his or her medical professional seeking guidance and treatment, the encounter qualifies as a request for an EPSDT screening.4
Conclusion A screening under EPSDT need not be a formal event separate from a child’s normal assessment and treatment interactions with his or her medical providers. To the extent that the Magistrate’s recent recommendations rely on an interpretation of the Medicaid Act that would
3 Courts have afforded CMS’ interpretations of the Medicaid Act respectful consideration because of the authority delegated to the Secretary of the Department of Health and Human Services under the Act and because of the agency’s expertise. Katie A. v. Bonta, 481 F. 3d 1150, 1154-55 n. 11 (9th Cir. 2007); see also S.D. v. Hood, 391 F.3d 581, 590 n.6 (5th Cir. 2004); Wis. Dep't of Health & Family Servs. v. Blumer, 534 U.S. 473, 497 (2002). 4 The State’s argument in its Motion to Dismiss rested on the premise that Plaintiffs must provide a “particularized allegation that there is any particular corrective treatment, any particular services that these individuals think they are entitled to that Medicaid hasn’t provided or has not provided for.” (H. Pizzetta, Motion Hearing Transcript, August 19, 2011, p. 14). However, as the Magistrate correctly held, EPSDT does not require that Plaintiffs identify the particular service necessary to treat their condition, only that the State “arrange for corrective treatment of conditions discovered through the screening provided under Subsection (43)(B).” Report and Recommendations, p. 6.
3 


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require a parent or caretaker to make a formal request for an “EPSDT screening,” the recommendations should be rejected. Any visit to a medical provider seeking a Medicaid diagnosis and/or treatment would necessarily include a screening as to the condition identified and would qualify the child for medically necessary EPSDT services necessary to address that condition.

Dated: September 6, 2013
GREGORY R. DAVIS United States Attorney Southern District of Mississippi
/s/ Alfred Jernigan ALFRED B. JERNIGAN, JR. Assistant United States Attorney MS Bar No. 3088 United States Attorney’s Office Southern District of Mississippi 501 E. Court Street, Ste. 4.430 Jackson, MS 39201 Telephone: (601) 973-2820 Facsimile: (601) 965-4032 al.jernigan@usdoj.gov

Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General
JONATHAN M. SMITH Chief
JUDITH C. PRESTON Principal Deputy Chief
/s/ Deena Fox DEENA FOX, NY Bar No. 4709655 REGAN BAILEY, WA Bar No. 39142 RYAN WILSON, DC Bar No. 1013907 Trial Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - PHB Washington, D.C. 20530 Telephone: (202) 305-1361 Facsimile: (202) 514-6903 deena.fox@usdoj.gov

4 


Case 3:10-cv-00153-HTW-MTP Document 57 Filed 09/06/13 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties.
/s/ Ryan Wilson
5 


DEPARTMENT OF HEALTH & HUMAN SERVICES

Health Care Financing Administration
Center for Medicaid and State Operations 7500 Security Boulevard
Baltimore, MD 21244-1850
SMDL #01-006

Dear State Medicaid Director:

Olmstead Update No: 4 Subject: HCFA Update Date: January 10, 2001

This is the fourth in a series of letters designed to provide guidance and support to States in their efforts to enable individuals with disabilities to live in the most integrated setting appropriate to their needs, consistent with the Americans with Disabilities Act (ADA). In attachments to this letter, we address certain issues related to allowable limits in home and community-based services (HCBS) waivers under section 1915(c) of the Social Security Act.

In attachments to this letter, we address certain questions related to State discretion in the design and operation of HCBS waivers under section 1915(c) of the Social Security Act. We also explain some of the principles and considerations that the Health Care Financing Administration (HCFA) will apply in the review of waiver requests and waiver amendments. Finally, we respond to key questions that have arisen in the course of State or constituency deliberations to improve the adequacy and availability of home and community-based services, or recent court decisions.
We encourage you to continue forwarding your policy-related questions and recommendations to the ADA/Olmstead workgroup through e-mail at ADA/Olmstead@hcfa.gov.
HCFA documents relevant to Medicaid and the ADA are posted on the ADA/Olmstead website at 
 http://www.hcfa.gov/medicaid/olmstead/olmshome.htm. 

Sincerely,

Timothy M. Westmoreland Director

Enclosures 
 Attachment 4-A “Allowable Limits and State Options in HCBS waivers” 


United States Exhibit 1

Attachment 4-B “EPSDT and HCBS waivers”
State Medicaid Director – 2
cc:
 HCFA Regional Administrators

HCFA Associate Regional Administrators for Medicaid and State Operations

Lee Partridge
 Director, Health Policy Unit
 National Association of State Medicaid Directors

Joy Wilson
 Director, Health Committee
 National Conference of State Legislatures

Matt Salo
 Director of Health Legislation
 National Governors’ Association

Robert Glover
 Director of Governmental Relations
 National Association of State Mental Health Program Directors

Brent Ewig
 Senior Director, Access Policy
 Association of State & Territorial Health Officials

Lewis Gallant
 Executive Director
 National Association of State Alcohol and Drug Abuse Directors, Inc.

Robert Gettings
 Executive Director
 National Association of State Directors of Developmental Disabilities Services

Virginia Dize
 Director, State Community Care Programs
 National Association of State Units on Aging.

2


Attachment 4-A
 Subject: Allowable Limits and State Options in HCBS Waivers
 Date: January 10, 2001

In this attachment, we discuss limits that States may place on the number of persons served and on services provided under an HCBS waiver. Current law requires States to identify the total number of people who may be served in an HCBS waiver in any year. States may derive this overall enrollment limit from the amount of funding the legislature has appropriated. However, once individuals are enrolled in the waiver, the State may not cap or limit the number of enrolled waiver participants who may receive a covered waiver service that has been found necessary by an assessment.
We have received a number of questions regarding limits that States may, or are required to, establish in HCBS waivers under section 1915(c) of the Social Security Act. Many of these questions have arisen in the course of discussions about the ADA and the Supreme Court Olmstead decision. Others have arisen in the context of certain court cases premised on Medicaid law. Examples include:
1. Overall Number of Participants: May a State establish a limit on the total number of people who may receive services under an HCBS waiver?
2. Fiscal Appropriation: May a State use the program’s funding appropriation to specify the total number of people eligible for an HCBS waiver?
3. Access to Services Within a Waiver: May a State have different service packages within a waiver? Once a person is enrolled in an HCBS waiver, can the individual be denied a needed service that is covered by the waiver based on a State limit on the number of enrollees permitted access to different waiver services?
4. Sufficiency of Amount, Duration, and Scope of Services: What principles will HCFA apply in reviewing limitations that States maintain with respect to waiver services?
5. Amendments that Lower the Potential Number of Participants: May a State reduce the total number of people who may be served in an HCBS waiver? Are there special considerations that need attention in such a case?
6. Establishing Targeting Criteria for Waivers: How much discretion does a State have in establishing the targeting criteria that will be used in a waiver program? May a State define a target group for the waiver that encompasses more than one of the categories of individuals listed in 42 CFR 441.301(b)(6)? 3 


In subjects 1 and 2, we explain current law and policy regarding the setting of limits on the total number of people who may be eligible for an HCBS waiver. In subject 3, we provide new clarification with respect to the access that waiver enrollees must be afforded within a waiver, consistent with recent court decisions. In subject 4, we explain that, while section 1915(c) permits a waiver of many Medicaid requirements, the requirement for adequate amount, duration, and scope is not waived. In subject 5, we discuss special considerations that HCFA will apply when reviewing any waiver amendment request in which the total number of eligible individuals would be reduced, so that the implications of the proposed amendment are fully addressed in light of all applicable legal considerations. In subject 6, we seek to reduce State administrative expenses by permitting States to develop a single waiver for people who have a disability or set of conditions that cross over more than one current waiver category.
The answers to the questions below are derived from Medicaid law. However, because Medicaid HCBS waivers affect the ability of States to use Medicaid to fulfill their obligations under the ADA and other statues, we have included these answers as an Olmstead/ADA update.
1. Overall Number of Participants
May a State establish a limit on the total number of people who may receive services under an HCBS waiver?
Yes. Under 42 CFR 441.303(f)(6), States are required to specify the number of unduplicated recipients to be served under HCBS waivers:
The State must indicate the number of unduplicated beneficiaries to which it intends to provide waiver services in each year of its program. This number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment.
Thus, unlike Medicaid State plan services, the waiver provides an assurance of service only within the limits on the size of the program established by the State and approved by the Secretary. The State does not have an obligation under Medicaid law to serve more people in the HCBS waiver than the number requested by the State and approved by the Secretary. If other laws (e.g., ADA) require the State to serve more people, the State may do so using non-Medicaid funds or may request an increase in the number of people permitted under the HCBS waiver. Whether the State chooses to avail itself of possible Federal funding is a matter of the State’s discretion. Failure to seek or secure Federal Medicaid funding does not generally relieve the State of an obligation that might be derived from other legislative sources (beyond Medicaid), such as the ADA.
If a State finds that it is likely to exceed the number of approved participants, it may request a waiver 4 


amendment at any time during the waiver year. Waiver amendments may be retroactive to the first day of the waiver year in which the request was submitted. 2. Fiscal Appropriation
May a State use the program’s funding appropriation to specify the total number of people eligible for an HCBS waiver?
HCFA has allowed States to indicate that the total number of people to be served may be the lesser of either (a) a specific number pre-determined by the State and approved by HCFA (the approved “factor C” value), or (b) a number derived from the amount of money the legislature has made available (together with corresponding Federal match). The current HCBS waiver pre-print used by States to apply for waivers contains both options. States sometimes use the second option because of the need to seek Federal waiver approval prior to the appropriation process, and sometimes the legislative appropriations are less than the amount originally anticipated. In addition, the rate of turnover and the average cost per enrollee may turn out to be different than planned, thereby affecting the total number of people who may be served.
In establishing the maximum number of persons to be served in the waiver, the State may furnish, as part of a waiver application, a schedule by which the number of persons served will be accepted into the waiver. The Medicaid agency must inform HCFA in writing of any limit that is subsequently derived from a fiscal appropriation, and supply the calculations by which the number or limit on the number of persons to be served was determined. This information will be considered a notification to HCFA rather than a formal amendment to the waiver if it does not substantially change the character of the approved waiver program. If a State fails to report this limit, HCFA will expect the State to serve the number of unduplicated recipients specified in the approved waiver estimates.
3. Access to Services Within a Waiver
May a State have different service packages within a waiver? Once a person is enrolled in a HCBS waiver, can the individual be denied a needed service that is covered by the waiver based on a State limit on the number of enrollees permitted access to different waiver services?
No. A State is obliged to provide all people enrolled in the waiver with the opportunity for access to all needed services covered by the waiver and the Medicaid State plan. Thus, the State cannot develop separate and distinct service packages for waiver population subgroups within a single waiver. The opportunity for access pertains to all services available under the waiver that an enrollee is determined to need on the basis of an assessment and a written plan of care/support.
This does not mean that all waiver participants are entitled to receive all services that theoretically could be available under the waiver. The State may impose reasonable and appropriate limits or utilization
5 


control procedures based on the need that individuals have for services covered under the waiver. An individual’s right to receive a service is dependent on a finding that the individual needs the service, based on appropriate assessment criteria that the State develops and applies fairly to all waiver enrollees.
This clarification does mean, however, that States are not allowed to place a cap on the number of enrollees who may receive a particular service within the waiver. There is no authority provided under law or regulation for States to impose a cap on the number of people who may use a waiver service that is lower than the total number of people permitted in the waiver. Denial of a needed and covered service within a waiver would have the practical effect of: (a) undermining an assessment of need, (b) countermanding a plan of care/support based on such an assessment of need, (c) converting a feasible service into one that arbitrarily benefits some waiver participants but not others who may have an equal or greater need, and (d) jeopardizing an individual’s health or welfare in some cases.
Similarly, a State may not limit access to a covered waiver service simply because the spending for such a service category is more than the amount anticipated in the budget. In the same way that nursing facilities may not deny nursing or laundry services to a resident simply because the nursing or laundry expenses for the year have exceeded projections, the HCBS waiver cannot limit access to services within the waiver based on the budget for a specific waiver-covered service. It is only the overall budget amount for the waiver that may be used to derive the total number of people the State will serve in the waiver. Once in the waiver, an enrolled individual enjoys protection against arbitrary acts or inappropriate restrictions, and the State assumes an obligation to assure the individual’s health and welfare.
We appreciate that a State’s ability to provide timely access to particular services within the waiver may be constrained by supply of providers, or similar factors. Therefore, the promptness with which a State must provide a needed and covered waiver service must be governed by a test of reasonableness. The urgency of an individual’s need, the health and welfare concerns of the individual, the nature of the services required, the potential need to increase the supply of providers, the availability of similar or alternative services, and similar variables merit consideration in such a test of reasonableness. The complexity of "reasonable promptness" issues may be particularly evident when a change of living arrangement is required. Where the need for such a change is very urgent (e.g., as in the case of abuse in a person's current living arrangement), then "reasonable promptness" could mean "immediate." Where the need for a change of living arrangement for a particular person is clear but not urgent, application of the reasonableness test to determine “reasonable promptness” could provide more time.
We recognize the question of reasonable promptness is a difficult one. We wish to call the issue to your attention as a matter of considerable importance that merits your immediate review. The issue will receive more attention from us in the future and is already receiving attention by the courts. The essential message is that the State's ability to deliver on what it has promised is very important. During CY 2001, we expect to work closely with States to improve our common understanding of what reasonable promptness requires. We also hope to collaborate with you on the infrastructure
6 


improvements that States may need to improve local ability to provide quality, customer-responsive and adequate services or supports in a timely manner. 4. Sufficiency of Amount, Duration and Scope of Services
What principles will HCFA apply in reviewing limitations that States maintain with respect to waiver services?
Federal regulations at 42 CFR 440.230(b) require that each Medicaid service must be sufficient in amount, duration, and scope to achieve the purpose of the service category. Within this broad requirement, States have the authority to establish reasonable and appropriate limits on the amount, duration and scope of each service.
In exercising discretion to approve new waiver requests, we will apply the same sufficiency concept to the entire waiver itself, i.e., whether the amount, duration and scope of all the services offered through the waiver (together with the State's Medicaid plan and other services available to waiver enrollees) is sufficient to achieve the purpose of the waiver to serve as a community alternative to institutionalization and assure the health and welfare of the individuals who enroll.
In applying this principle, it is not our intent to imply or establish minimum standards for the number or type of services that must be in an HCBS waiver. Because the waiver wraps around Medicaid State plan services, and because the needs of each target group vary considerably, it is clear that the sufficiency question may only be answered by a three-way review of (a) the needs of the selected target group, (b) the services available to that target group under the Medicaid State plan and other relevant entitlement programs, and (c) the type and extent of HCBS waiver services. Whether the combination of these factors would permit the waiver to meet its purpose, particularly its statutory purpose to serve as a community alternative to institutionalization, is an analysis we would expect each State to conduct.
Where a waiver design is manifestly incapable of serving as such an alternative for a preponderance of the State’s selected target group, we would expect the State to make the adjustments necessary to remedy the problem in its waiver application for any new waiver. In other cases, an exceptionally limited service design may prevent an existing waiver from being able to assure the health or welfare of the individuals enrolled. Where, subsequent to a HCFA review of quality in an existing waiver, it is very clear that the waiver design renders it manifestly incapable of responding effectively to serious threats to the health or welfare of waiver enrollees, we would expect the State to make the necessary design adjustments to enable the State to fulfill its assurance to protect health and welfare. The fact that States have the authority to limit the total number of people who may enroll in a waiver provides States with reasonable methods to control the overall spending. This means that States should be able to manage their waiver budgets without undermining the waiver purpose or quality by exceptional restrictions applied to services that will be available within the waiver.
7 


5. Amendments That Lower the Potential Number of Participants
May a State reduce the total number of people who may be served in an HCBS waiver? Are there special considerations that need attention in such a case?
A State may amend an approved waiver to lower the number of potential eligibles, subject to certain limitations. The following represent special considerations that HCFA will take into account in reviewing such waiver amendments:
Existing Court Cases or Civil Rights Complaints: If the number of waiver eligibles is a material item to any ongoing legal proceeding, investigation, finding, settlement, or similar circumstance, we will expect the State to (a) notify HCFA and the court of the State’s request for a waiver amendment, and (b) notify HCFA and the DHHS Office for Civil Rights whenever a waiver amendment is relevant to the investigation or resolution of any pending civil rights complaint of which the State is aware.
Avoiding or Minimizing Adverse Effects on Current Participants: Under section 1915(c)(2)(A), HCFA is required to assure that the State has safeguards to protect the health and welfare of individuals provided services under a waiver. Thus, a key consideration in HCFA’s review of requests to lower the number of unduplicated recipients for an existing waiver is the potential impact on the current waiver population. By "current waiver population," we refer to people who have been found eligible and have enrolled in the waiver. Any reduction in the number of potential waiver eligibles must be accomplished in a manner that continues to assure the health, welfare, and rights of all individuals already enrolled in the waiver. An important consideration is whether a proposed reduction in waiver services would adversely affect the rights of current waiver enrollees to receive services in the most integrated setting appropriate, consistent with the ADA. The State may address these concerns in several ways:
� The State may provide an assurance that, if the waiver request is approved, the State will have sufficient service capacity to serve at least the number of current participants enrolled in the waiver as of the effective date of the amendment.
� The State may assure HCFA that no individuals currently served on the waiver will be removed from the program or institutionalized inappropriately due to the amendment. For example, the State may achieve a reduction through natural attrition.
� The State may provide an assurance and methodology demonstrating how individuals currently served by the waiver will not be adversely affected by the proposed amendment. For example, a State that no longer requires its waiver, because it has added as a State plan 8 


service the principal service(s) provided by the waiver, may specify a method of transitioning waiver participants to the State plan service. We note that any individual who is subject to removal from a waiver is entitled to a fair hearing under Medicaid law, and the methodology of transition is particularly important in that context.
� The State may provide a plan whereby affected individuals will transition to other HCBS waivers without loss of Medicaid eligibility or significant loss of services. We anticipate that this may occur when a State seeks to consolidate two or more smaller waivers into one larger program.
This discussion should not be construed as limiting a State’s responsibilities to provide services to qualified individuals with disabilities in the most integrated settings appropriate to their needs as required by the ADA or other Federal or State law.
6. Establishing Targeting Criteria for Waivers
How much discretion does a State have in establishing the targeting criteria that will be used in a waiver program? May a State define a target group for the waiver that encompasses more than one of the categories of individuals listed in 42 CFR 441.301(b)(6)?
Under 42 CFR 441.301(b)(6), HCBS waivers must “be limited to one of the following targeted groups or any subgroup thereof that the State may define: (i) aged or disabled or both, (ii) mentally retarded or developmentally disabled or both, (iii) mentally ill.” States have flexibility in establishing targeting criteria consistent with this regulation. States may define these criteria in terms of age, nature or degree or type of disability, or other reasonable and definable characteristics that sufficiently distinguish the target group in understandable terms.
HCFA recognizes that discrete target groups may encompass more than one of the categories of individuals defined in this regulation. For example, persons with acquired brain injury may be categorized as either physically disabled in accordance with section 441.301(b)(6)(i) or developmentally disabled in accordance with section 441.301(b)(6)(ii) depending on the age of the person when the brain injury occurred. In such cases, HCFA will permit the State to have one waiver to serve the defined target population that could conceivably encompass more than one category of the regulations in order to avoid the unnecessary administrative expense resulting from the development of a second waiver for the target population.
Please refer any questions concerning this attachment to Mary Jean Duckett (410) 786-3294.
9


Attachment 4-B
 Subject: EPSDT and HCBS Waivers
 Date: January 10, 2001

In this attachment, we clarify ways in which Medicaid HCBS waivers and the Medicaid Early and Periodic Screening, Diagnostic and Treatment (EPSDT) services interact to ensure that children receive the full complement of services they may need.
States may take advantage of Medicaid HCBS waivers under section 1915(c) of the Social Security Act to supplement the services otherwise available to children under Medicaid, or to provide services to children who otherwise would not be eligible for Medicaid. In both cases, States must ensure that (1) all children, including the children made eligible for Medicaid through their enrollment in a HCBS waiver, receive the EPSDT services they need, and (2) children receive all medically necessary Medicaid coverable services available under EPSDT. Because the HCBS waiver can provide services not otherwise covered under Medicaid, and can also be used to expand coverage to children with special health care needs, EPSDT and HCBS waivers can work well in tandem. However, a child's enrollment in an HCBS waiver cannot be used to deny, delay, or limit access to medically necessary services that are required to be available to all Medicaid-eligible children under federal EPSDT rules.
Under EPSDT requirements, generally children under age 21 who are served under the Medicaid program should have access to a broad array of services. State Medicaid programs must make EPSDT services promptly available [for any individual who is under age 21 and who is eligible for Medicaid] whether or not that individual is receiving services under an approved HCBS waiver.
Included in the Social Security Act at section 1905(r), EPSDT services are designed to serve a twofold purpose. First, they serve as Medicaid’s well-child program, providing regular screenings, immunizations and primary care services. The goal is to assure that all children receive preventive care so that health problems are diagnosed as early as possible, before the problems become complex and treatment more difficult and costly. Under federal EPSDT rules, States must provide for periodic medical, vision, hearing and dental screens. An EPSDT medical screen must include a comprehensive health and developmental history, including a physical and mental health assessment; a comprehensive unclothed physical examination; appropriate immunizations; laboratory tests, including lead blood level assessments appropriate for age and risk factors; and health education, including anticipatory guidance.
The second purpose of EPSDT services is to ensure that children receive the services they need to treat identified health problems. When a periodic or inter-periodic screening reveals the existence of a problem, EPSDT requires that Medicaid-eligible children receive coverage of all services necessary to
10


diagnose, treat, or ameliorate defects identified by an EPSDT screen, as long as the service is within the scope of section 1905(a) of the Social Security Act. (Please note that we have long considered any encounter with a health care professional practicing within the scope of his/her practice inter-periodic screening.) That is, under EPSDT requirements, a State must cover any medically necessary services that could be part of the basic Medicaid benefit if the State elected the broadest benefits permitted under federal law (not including HCBS services, which are not a basic Medicaid benefit). Therefore, EPSDT must include access to case management, home health, and personal care services to the extent coverable under federal law
Medicaid’s HCBS waiver program serves as the statutory alternative to institutional care. This program allows States to provide home or community-based services (other than room and board) as an alternative to Medicaid-funded long term care in a nursing facility, intermediate care facility for the mentally retarded, or hospital.
• Under an HCBS waiver, States may provide services that are not otherwise available under the Medicaid statute. These may include homemaker, habilitation, and other services approved by HCFA that are cost-effective and necessary to prevent institutionalization. Waivers also may provide services designed to assist individuals to live and participate in their communities, such as prevocational and supported employment services and supported living services. HCBS waivers may also be used to provide respite care (either at home or in an out-of-home setting) to allow family members some relief from the strain of caregiving.
• In addition, under a Medicaid HCBS waiver, a State may provide Medicaid to persons who would otherwise be eligible only in an institutional setting, often due to the income of a spouse or parent. This is accomplished through a waiver of section 1902(a)(10)(C)(i)(III) of the Social Security Act, regarding income and resource rules.
In all instances, HCBS waivers supplement but do not supplant a State’s obligation to provide EPSDT services. A child who is enrolled in an HCBS waiver also must be assured EPSDT screening and treatment services. The waiver is used to provide services that are in addition to those available through EPSDT.
There are a number of distinctions between EPSDT services and HCBS waivers. While States may limit the number of participants under an HCBS waiver, they may not limit the number of eligible children who may receive EPSDT services. Thus, children cannot be put on waiting lists for Medicaid­ coverable EPSDT services. While States may limit the services provided under an HCBS waiver in the ways discussed in attachment 4-A, States may not limit medically necessary services needed by a child who is eligible for EPSDT that otherwise could be covered under Medicaid. Children who are enrolled in the HCBS waiver must also be afforded access to the full panoply of EPSDT services. Moreover, under EPSDT, there is an explicit obligation to “make available a variety of individual and group providers qualified and willing to provide EPSDT services” 42 CFR 441.61(b).
11 


Similarly, a State may use an HCBS waiver to extend Medicaid eligibility to children who otherwise would be eligible for Medicaid only if they were institutionalized. Such children are also entitled to the full complement of EPSDT services. Children made eligible for Medicaid through their enrollment in an HCBS waiver cannot be limited to the receipt of waiver services alone. The combination of EPSDT and HCBS waiver services can allow children with special health care, as well as developmental and behavioral needs, to remain in their own homes and communities and receive the supports and services they need. The child and family can benefit most when the State coordinates its Medicaid benefits with special education programs in such a way as to enable the family to experience one system centered around the needs of the child. In developing systems to address the needs of children with disabilities, we encourage you to involve parents and other family members as full partners in your planning and oversight activities. HCFA staff will be pleased to consult with States that are working to structure children’s programs around the particular needs of children with disabilities and their families. Please refer any questions concerning this attachment to Mary Jean Duckett (410) 786-3294.
12


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

MARY TROUPE, et al.

PLAINTIFF

V.

CAUSE NO. 3:10-CV-153-HTW-LRA

GOVERNOR PHIL BRYANT, et al

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATIONS AND GRANTING DEFENDANTS’ MOTION TO DISMISS COUNT ONE

Before this Court is the Report and Recommendations of the United States Magistrate Judge Michael T. Parker, [docket no. 55], whereby Judge Parker recommends that this court grant Defendants’ Motion to Dismiss Count One of Plaintiff’s Complaint or for Judgment on the Pleadings [docket no.15], based on failure to state a claim for relief.
Plaintiffs in this case are Medicaid-eligible children who suffer from a variety of emotional, behavioral and mental health disorders. They submit that Mississippi has not provided them with the home and community-based mental health treatment to which they are entitled under the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) provisions of the Medicaid Act.1 Plaintiffs also claim that Mississippi’s failure to provide these services violates the Americans with Disabilities Act (ADA)2 and the Rehabilitation Act.3 Defendants’ motion sub judice only seeks dismissal of the first count, the Medicaid claims, and does not address the remaining claims asserted under ADA or the Rehabilitation Act.

1 The EPSDT provisions are codified at 42 U.S.C. § 1396 et seq. 2 42 U.S.C. § 12101, et seq. 3 29 U.S.C. § 701 et seq.

The Defendants herein are: the Governor of the State of Mississippi in his official
capacity; the Director of the Mississippi Division of Medicaid in his official capacity; the
Chair of the Mississippi Board of Mental Health in his official capacity; and the Director of
the Mississippi Department of Mental Health in his official capacity.
This court has subject matter jurisdiction by way of 28 U.S.C. § 1331, as this is a civil
action arising under the Constitution and laws of the United States.
This court’s authority to review the Magistrate Judge’s Order, upon challenge, is
provided by Rule 72 (b)(3 of the Federal Rules of Civil Procedure.
The EPSDT provisions at issue require the Division of Medicaid to do three things:
1) provide notice of the availability of EPSDT services; 2) provide for or arrange health
screening services where requested; and 3) when the need for treatment is disclosed by the
screening, arrange for corrective treatment.4
Plaintiffs herein do not challenge whether Defendants failed to provide notice of the
availability of EPSDT. Nor do Plaintiffs allege that the Defendants failed to provide for or
arrange health screening services when requested. Plaintiffs, instead contend that
4 42 U.S.C. § 1396a(a)(43) states as follows: (a) A State plan for medical assistance must— … (43) provide for— (A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in [42 U.S.C. § 1396d(r)], of the availability of early and periodic screening, diagnostic, and treatment services as described in [42 U.S.C. § 1396d(r)] and the need for age-appropriate immunizations against vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in all cases where they are requested, [and] (C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services …
2

Defendants have failed to abide by their duty to identify, under 42 U.S.C. § 1396a (a)(43) of the Act, persons who are eligible for medical assistance, to wit screening services, diagnosis and treatment services.
The Magistrate Judge found that Plaintiffs did not allege sufficient facts to demonstrate that Defendants had violated the requirements of 42 U.S.C. § 1396a (a)(43). In making this determination, the Magistrate Judge identified two main issues: First, whether Plaintiffs were required to request screening under the provisions of Subsection (43)(B) before a duty is created for the Defendants to provide treatment under (43)(C); and Secondly, whether the Plaintiffs had made such a request for screening.
The Magistrate Judge answered the first interrogatory in the affirmative, but determined that the second question was in the negative.
Plaintiffs, the Magistrate Judge found, did not even allege that they had requested screening pursuant to Subsection (43)(B), contrary to their obligation as found by the Magistrate Judge. In fact, Plaintiffs even acknowledged that they had not requested screening or treatment from the Defendants. The Magistrate Judge, therefore, recommended that the District Judge grant Defendant’s Motion to Dismiss Count One of the Complaint [docket no. 15].
This Court is aware that other courts have reached a different view on the issue of whether Plaintiffs have the affirmative duty to request health screenings under the EPSDT. See Stanton v. Bond, 504 F.2d 1246, 1250-51 (7th Cir. 1974); Rosie D. v. Romney, 410 F. Supp. 2d 18 (D.Mass. 2006). This Court, though, is persuaded that the Magistrate Judge’s Report and Recommendations sub judice represent the sounder reasoning.
3

CONCLUSION After due consideration of the Defendants’ motion and the memoranda submitted in relation thereto, the Magistrate Judge’s Report and Recommendations, the partial objections and response to same, the record and relevant law, this Court finds that the Magistrate Judge’s Report and Recommendations should be adopted as the finding of this Court [docket no. 55]. Accordingly, this Court finds that the Defendants’ Motion to Dismiss [docket no. 15] should be granted, and Count One of Plaintiff’s Complaint should be dismissed for failure to state a claim for which relief may be granted. SO ORDERED AND ADJUDGED, this the 7th day of November, 2016.
____s/HENRY T. WINGATE________ UNITED STATES DISTRICT JUDGE
4

 
 Case 3:10-cv-00153-HTW-MTP Document 127 Filed 12/06/16 Page 1 of 7

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

MARY TROUPE, et al. V. HALEY BARBOUR, et al.

PLAINTIFFS CIVIL ACTION NO. 3:10-CV-153-HTW-MTP
DEFENDANTS

ORDER For the reasons stated below, the Court grants Defendants’ Motion to Consolidate [112] the lawsuit filed by the United States Department of Justice against the State of Mississippi – United States v. Mississippi, No. 3:16-CV-622-CWR-FKB (S.D. Miss. Aug. 11, 2016) – with this case.
I. BACKGROUND Plaintiffs in this case are a group of Medicaid-eligible children who allegedly suffer from a variety of behavioral, emotional, and mental health disorders. They claim that the state of Mississippi failed to provide them integrated home- and communitybased services which were medically necessary to address their mental health needs. Instead, Plaintiffs are allegedly forced to seek treatment in restrictive residentialtreatment facilities which sever connections with family and peers and exacerbate their mental disorders. Plaintiffs claim that Defendants’ failure to provide adequate mental health services violates the Americans with Disabilities Act (“ADA”)1 and the

142 U.S.C. § 12101, et seq.

Case 3:10-cv-00153-HTW-MTP Document 127 Filed 12/06/16 Page 2 of 7
Rehabilitation Act.2 In United States v. Mississippi, No. 3:16-CV-622-CWR-FKB (S.D. Miss. Aug. 11,
2016) (the “DOJ case”), the United States alleges that Mississippi discriminates against adults with mental illness by administering and funding its programs and services in a manner that creates repeated, prolonged, and unnecessary institutionalization in state-run psychiatric hospitals. The United States argues that these policies violate the ADA, and the State must provide community-integrated services, programs, and activities to adults with mental illness in Mississippi.
Mississippi filed Motions to Consolidate [112] in each case.3 The United States opposes the motion, but, according to the State, the Troupe Plaintiffs have no position on the issue.
II. DISCUSSION Rule 42 provides: “If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.” FED. R. CIV. P. 42(a). District courts in this Circuit consider a variety of factors when addressing a motion to consolidate, including: (1) whether the actions are pending before the same court, (2) whether common parties are involved in the cases, (3) whether there are common
229 U.S.C. § 701, et seq. 3Pursuant to Local Rule 42, a motion to consolidate two cases in the same division is noticed to the Magistrate Judge before whom the case with the lower docket number is pending. See L.U.Civ.R. 42.
2

Case 3:10-cv-00153-HTW-MTP Document 127 Filed 12/06/16 Page 3 of 7
questions of law and/or fact, (4) whether there is a risk of prejudice or confusion if the cases are consolidated, and if so, is the risk outweighed by the risk of inconsistent adjudications of factual and legal issues if the cases are tried separately, (5) whether consolidation will conserve judicial resources, (6) whether consolidation will result in an unfair advantage, (7) whether consolidation will reduce the time for resolving the cases, and (8) whether consolidation will reduce the cost of trying the cases separately. Crest Audio, Inc. v. QSC Audio Prods., No. 3:12-CV-755-CWR-FKB, 2016 U.S. Dist. LEXIS 80561, at *5-*6 (S.D. Miss. Mar. 4, 2016) (quoting In re Camp Arrowhead, Ltd., No. SA-10-CV-170-XR, 2010 U.S. Dist. LEXIS 21177, at *3-*4 (W.D. Tex. Mar. 8, 2010)). “A trial court has broad discretion in determining whether to consolidate a case pending before it.” Mills v. Beech Aircraft Corp., 886 F.2d 758, 762 (5th Cir. 1989).4 A. Same Court The two cases are pending before the same court. This factor weighs in favor of consolidation. B. Common Parties The State of Mississippi is the Defendant in each case. Although the United States is not a party to this case, it filed a Statement of Interest [57] in a pending dispositive motion, counsel have entered appearances on its behalf [79, 80, 81], it has participated in various telephone conferences with the Court, and it has participated
4The analytical framework proposed by the United States is inapplicable. The primary cases cited by the United States – Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599 (5th Cir. 1999), Int’l Fid. Ins. Co. v. Sweet Little Mex. Corp., 665 F.3d 671 (5th Cir. 2011), W. Gulf Maritime Assoc. v. ILA Deep Sea Local 24, 751 F.2d 721 (5th Cir. 1985) – addressed application of the “first-to-file” rule where identical cases were pending before two different courts. Here, the two cases are pending in the same division of the same court.
3

Case 3:10-cv-00153-HTW-MTP Document 127 Filed 12/06/16 Page 4 of 7
in settlement negotiations. Although the Plaintiffs here are not involved in the DOJ case, their claims are substantially similar to those presented by the United States.
“Consolidation is not limited to actions involving identical parties . . . , but is available to different parties . . . in actions having common questions of fact and law.” Attala Hydratane Gas, Inc. v. Lowry Tims Co., 41 F.R.D. 164, 165 (N.D. Miss. 1966). Here, there are parties common to both cases. As noted above, the State of Mississippi is a party in each case, and the United States has, at the very least, an interest in the outcome of both cases. Therefore, the cases share common, albeit not identical, parties. C. Common Questions of Law and Fact
It is beyond question that the two cases share common questions of law. Both cases challenge Mississippi’s provision of services to the mentally ill, citing Olmstead v. L. C., 527 U.S. 581, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999). The plaintiffs in both cases allege that unnecessarily confining those needing mental health care to state-run institutions, rather than providing community-integrated care, constitutes unlawful discrimination under Title II. Further, the Troupe Plaintiffs’ only distinctive claim – concerning Defendant’s alleged failure to provide Early and Periodic Screening, Diagnostic, and Treatment services under the Medicaid Act – has been dismissed, completely aligning the causes of action in the two cases. Therefore, the cases share numerous common legal issues.
As for the facts, one case addresses mental health services for children, while the other addresses mental health services for adults. As such, the cases will likely present both common and different questions of fact.
4

Case 3:10-cv-00153-HTW-MTP Document 127 Filed 12/06/16 Page 5 of 7
Overall, this factor weighs in favor of consolidation. The legal issues presented by the two cases are so similar that it outweighs whatever slight variance there may be in the facts. Both cases present broad challenges to Mississippi’s public policies concerning the provision of services and treatment under Medicaid to those with mental illness. Insofar as one case concerns children and the other concerns adults, these are simply facets of the same system. D. Risk of Prejudice, Confusion, Inconsistent Rulings
Consolidation poses little to no risk of prejudice to the parties. Discovery has not begun in either case. An initial Case Management Conference is scheduled in each case within the next week. Therefore, neither is substantially further along in discovery than the other, and consolidation will not delay resolution of either case.
As far as confusing the issues, the Court again notes that the cases involves substantially similar legal claims. Each case involves a facet of the same mental health system. While there will undoubtedly be some need to distinguish between fact issues related to each facet, the Court does not believe it will be as difficult or confusing as the United States argues.
Even if consolidation did pose a risk of prejudice or confusion, the need to avoid inconsistent rulings outweighs such risk. Both cases involve demands for broad injunctive relief. Therefore, inconsistent rulings could lead to disparate State obligations concerning the provision of mental health care and services to adults and children.
5

Case 3:10-cv-00153-HTW-MTP Document 127 Filed 12/06/16 Page 6 of 7
E. Conservation of Judicial Resources Consolidating the cases will conserve judicial resources insofar as one District
Judge will hear the two cases, rather than duplicating work by having two different judges consider the same legal issues. Furthermore, in light of the similarity of the claims in each case, it is likely that any proposed settlements and/or potential remedies would have to be crafted with both cases in mind – as evidenced by the United States’ participation in this case’s settlement negotiations.
The Court also believes that consolidation will save the parties’ resources insofar as they can work jointly on briefing dispositive issues and avoid duplication of discovery efforts. F. Unfair Advantage
Neither party has articulated any manner in which consolidation would create an unfair advantage. G. Reduction of Time
The United States argues that consolidation will increase the time for resolution of the DOJ case because Troupe involves procedural complexities inherent to class actions, and because there are motions pending in Troupe that await resolution. The Court will assume, for the purpose of addressing the current motion, that this factor weighs against consolidation. H. Reduction of Cost
Consolidation could reduce the parties’ cost, at least to a minor degree, insofar as they can conduct joint discovery efforts and work together in briefing dispositive
6

Case 3:10-cv-00153-HTW-MTP Document 127 Filed 12/06/16 Page 7 of 7
motions. This factor weighs slightly in favor of consolidation. I. Summary
Most of these factors weigh in favor of consolidation. The two cases at issue involve the same substantive questions of law. Their facts may differ in some respects, but each case involves a different facet of the same state mental health system. Accordingly, some factual overlap is likely. Consolidating the cases may present some minor procedural hurdles, but overall it would “avoid unnecessary cost or delay.” FED. R. CIV. P. 42(a)(3).
III. CONCLUSION For the reasons above, the Court grants Defendant’s Motion to Consolidate [112]. United States v. Mississippi, No. 3:16-CV-622-CWR-FKB (S.D. Miss. Aug. 11, 2016) shall immediately be consolidated with this case, Troupe v. Barbour, No. 3:10CV-153-HTW-MTP (S.D. Miss. Mar. 10, 2010). Pursuant to Local Rule 42, all future filings in either case shall be filed in this case, as it bears the lower docket number. SO ORDERED this 6th day of December, 2016.
s/Michael T. Parker UNITED STATES MAGISTRATE JUDGE
7

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

UNITED STATES OF AMERICA

PLAINTIFF

V.

CIVIL ACTION NO. 3:16-CV-622-CWR-FKB

STATE OF MISSISSIPPI

DEFENDANT

CONSOLIDATED WITH

MARY TROUPE, et al.

PLAINTIFFS

V.

CAUSE NO. 3:10-CV-153-HTW-LRA

GOVERNOR PHIL BRYANT, et al.

DEFENDANTS

ORDER

This Court has pending before it the amended motion of plaintiffs J.B., L.P., and

L.M., through their attorneys, to voluntarily dismiss their claims pursuant to Federal Rule of

Civil Procedure 41 (a) (2). [doc. no. 134]. None of the parties have objected to the

voluntary dismissal. Plaintiff, United States, consents to the dismissal, and the State of

Mississippi filed its response to the motion for voluntary dismissal, stating it, too, does not

oppose the motion. [doc. no. 140].

BACKGROUND

This litigation began with a group of four plaintiffs who were a group of Medicaid-

eligible children allegedly suffering from a variety of behavioral, emotional and mental

health disorders. These plaintiffs claimed that the defendants’ failure to provide adequate

mental health services violated the Americans with Disabilities Act (“ADA”)1 and the

1 The Americans with Disabilities Act (ADA) is codified as Title 42 U.S.C. §12101, et seq.

Rehabilitation Act.2 The plaintiffs additionally sought to be certified to represent a class composed of all children under the age of twenty-one with behavioral or emotional disorders, who are in need of intensive home- and community-based mental health services, but are not receiving such services. All of the plaintiffs have since withdrawn the motion for class certification, however.
ANALYSIS Over the course of this litigation, the three plaintiffs seeking voluntary dismissal have become adults. Their claims are no longer appropriate for adjudication in Troupe v. Barbour, which sought to improve mental health services for children in Mississippi. L.S., who is still a minor, is the only proper plaintiff remaining in the Troupe v. Barbour litigation. Rule 41(a)(2)3 provides that after an opposing party has served either an answer or a motion for summary judgment, an action may only be dismissed at plaintiff’s request by court order. The dismissal is usually without prejudice unless the order states otherwise. It is within the sound discretion of the district court whether to grant or deny such a motion. Hartford Accident & Indemnity Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990). As a general rule, “motions for voluntary dismissal should be freely granted unless the non-moving party will suffer some plain legal prejudice other than the
2 The Rehabilitation Act is codified as Title 29 U.S.C. § 701, et seq. 3 Rule 41. Dismissal of Actions
(a) Voluntary Dismissal. (1) By the Plaintiff (A) … (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. … Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
2

mere prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002) (citing Manshack v. Sw. Elec. Power Co., 915 F.2d 172, 174 (5th Cir. 1990). It does not appear to this court that the non-movants will suffer any prejudice by the grant of this motion. In fact, the litigation may be will be significantly simplified.
CONCLUSION Because the three movants are no longer under twenty-one years of age, and because none of the other parties has expressed any opposition, this court is persuaded that the motion for voluntary dismissal of plaintiffs J.B., L.P., and L.M. [doc. 134] should be and hereby is granted, without prejudice. SO ORDERED AND ADJUDGED, this the 19th day of March, 2017.
_______s/ HENRY T. WINGATE___________ UNITED STATES DISTRICT COURT JUDGE
3

 
 Case 3:10-cv-00153-HTW-MTP Document 156 Filed 04/14/17 Page 1 of 3

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

L.S., by and through his next Friend, Sheila Davis

PLAINTIFF

V.

CAUSE NO. 3:10-CV-153-HTW-LRA

GOVERNOR PHIL BRYANT, in his official capacity; DAVID J. DZELAK in his official capacity as Executive Director of Medicaid; RICK BARRY, in his official capacity as Chair of the State Board of Mental Health; and DIANA MIKULA, in her official capacity as Executive Director of the Mississippi Department of Mental Health

DEFENDANTS

ORDER

Before this court is the motion [doc. no. 135] filed by the sole remaining plaintiff,

L.S., by and through counsel, for leave to file a first amended complaint [doc. no. 135]

pursuant to Rule 15(a)(2)1 of the Federal Rules of Civil Procedure. Plaintiff contends that

due to significant factual and procedural developments in this case, plaintiff has good cause

to amend the complaint. The Defendants oppose the motion. [ doc. no. 141].

Over the course of this litigation, several of the former plaintiffs reached adulthood,

causing them to no longer be proper plaintiffs in this lawsuit, since this lawsuit purports to

1 Rule 15 of Federal Rules of Civil Procedure provides: Amended and Supplemental Pleadings
(a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend the pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

Case 3:10-cv-00153-HTW-MTP Document 156 Filed 04/14/17 Page 2 of 3
address mental health care for children in Mississippi. Further, the plaintiff has withdrawn the motion to certify class. Accordingly, as this litigation now stands, as above stated, this matter is now proceeding as an individual lawsuit on behalf of the sole remaining plaintiff, L.S.
The Defendants object to the proposed amended complaint because, they contend, it attempts to reassert a claim that was previously dismissed on the merits, the claim under the Early and Periodic, Screening, Diagnostic and Treatment (EPSDT) provision of the Medicaid Act.2
L.S. has met the standard for obtaining leave to file an amended complaint. Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely give leave when justice so requires.” Rule 15(a) “evinces a bias in favor of granting leave to amend.” Hermann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002) (quoting Dussouy v. Gulf Coast Inc. Corp., 660 F.2d 594, 598 (5th Cir. 1981)). The district court has extensive discretion to decide whether to grant leave to amend. See Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014). Here, given the changed circumstances of the case, the plaintiff should be allowed to amend the complaint to conform to the claims made on behalf of the individual plaintiff.
The Defendants have a valid argument, though, in saying that plaintiff should not be allowed to resurrect the EPSDT claim, which was previously denied on the merits. Lincoln Gen. Inc. Col v. U.S. Auto Ins. Svcs., Inc., 787 F.3d 716, 724 (5th Cir. 2015). The Report and Recommendations of Magistrate Judge Michael T. Parker found that Plaintiffs’ EPSDT
2 42 U.S.C. § 1396, et seq.

Case 3:10-cv-00153-HTW-MTP Document 156 Filed 04/14/17 Page 3 of 3
claim should be dismissed with prejudice. [doc. no. 55 at p. 11]. This court adopted that Report and Recommendation in its order of November 7, 2016. [doc. no. 120]. The Magistrate Judge found [doc. no.55 at p. 9], and this Court agreed, that plaintiffs had not requested screening under the provisions of the EPSDT, as would be required before a duty is created for the Defendants to provide treatment. Therefore, this court concludes that plaintiff’s averments in the proposed amended complaint [135-1] which purport to state a claim under the EPSDT provisions of Medicaid, may not be re-alleged.
Accordingly, this court is persuaded to grant in part and deny in part plaintiff’s motion to amend [doc. no. 135]. Plaintiff is hereby granted leave to amend the complaint, but plaintiff must purge the amended complaint of the EPSDT claim before plaintiff files the amended complaint. Plaintiff shall tailor the amended complaint [doc. no. 135-1] to conform to this Court’s directives herein, and may file the amended complaint, as modified, within ten days of this order.
SO ORDERED, this the 14th day of April , 2017.
___ s/ HENRY T. WINGATE_____________ UNITED STATES DISTRICT COURT JUDGE

 
 Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 1 of 11

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

L.S., by and through his next friend, Sheila Davis,
Plaintiff,
v.
GOVERNOR PHIL BRYANT, in his official capacity; DAVID J. DZLELAK in his official capacity as Executive Director of the Mississippi Division of Medicaid; RICK BARRY, in his official capacity as Chair of the State Board of Mental Health; and DIANA MIKULA, in her official capacity as Executive Director of the Mississippi Department of Mental Health,
Defendants.

Case No. 3:10-cv-153-HTW-MTP JURY TRIAL REQUESTED

AMENDED COMPLAINT INTRODUCTION
1. This complaint seeks to enforce the right of plaintiff L.S. to receive medically-necessary services, programs, and activities in the most integrated setting appropriate to his needs. 2. L.S. is a Medicaid-eligible adolescent with a moderate intellectual developmental disability (IDD) and a co-occurring mental illness. His primary needs for support are related to his developmental disability, not his mental illness. 3. Under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, Defendants are required to provide L.S. with medically necessary services, programs, and

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 2 of 11
activities in the most integrated setting appropriate to his needs. 28 C.F.R. § 35.130(d). 4. Defendants have failed to provide L.S. with medically necessary services, programs, and activities in the most integrated setting appropriate to his needs. 5. Instead, L.S. has been needlessly institutionalized for the majority of his adolescence. As a result of Defendants’ continued over-reliance on institutions, L.S. has cycled through hospitals, acute care facilities, residential treatment facilities, intermediate care facilities for individuals with developmental disabilities, and group homes without obtaining any long-term relief. The continued denial of medically necessary services, programs, and activities has caused and will continue to cause serious, long term, and irreversible harm to L.S. 6. L.S. seeks prospective injunctive relief ordering the Defendants to comply with the mandates of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Declaratory and injunctive relief is necessary to ensure that L.S. receives the treatment and services to which he is entitled by law.
PARTIES A. Plaintiff 7. L.S. is a nineteen year old adolescent with a moderate intellectual developmental disability and a co-occurring mental illness. 8. His primary needs for support are related to his developmental disability, not his mental illness. 9. L.S. has spent the majority of his adolescence unnecessarily segregated and institutionalized in residential treatment facilities, acute care facilities, intermediate care facilities for people with developmental disabilities, state hospitals, and group homes across Mississippi. As a result, he has been unable to pursue everyday life activities that contribute to his growth and

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 3 of 11
development as a person entering adulthood. 10. L.S. enjoys listening to gospel and blues music. An aspiring chef, L.S. hopes to live independently in an apartment with a kitchen, where he can prepare his own meals. He also looks forward to obtaining a driver’s license so he can visit his family in Southeast Mississippi. B. Defendants 11. Defendant Phil Bryant is the Governor of Mississippi, a public entity covered by Title II of the ADA, 42 U.S.C. § 12131(1) and a participant in the federal Medicaid program. Defendant Bryant, as supreme executive officer of the state, is responsible for ensuring that all Mississippi agencies comply with applicable federal law. Miss Code § 7-1-5 (a)(c). Defendant Bryant is responsible for supervising the official conduct of all executive offices – including the Department of Mental Health, the State Board of Mental Health, and the Division of Medicaid. Miss. Code § 7-1-5 (d). Defendant Bryant appoints the members of the State Board of Mental Health, Miss. Code § 41-4-3(1); appoints the Executive Director of the Division of Medicaid, which is a division of the Governor’s Office, Miss. Code § 43-13-107, and approves all Medicaid expenditures. Miss. Code § 43-13-117(A). Defendant Bryant is sued in his official capacity. 12. Defendant David J. Dzlelak is the Executive Director of the Mississippi Division of Medicaid, the single state agency responsible for the administration of the Mississippi Medicaid program. Defendant Dzlelak oversees the development and execution of Mississippi’s Medicaid Plan and all Medicaid policies and procedures, including those regarding services for children with developmental disabilities. Miss. Code § 43-13-107, §43-13-117. Defendant Dzlelak is also responsible for ensuring that Mississippi’s Medicaid program operates in compliance with state and federal law. Defendant Dzlelak is sued in his official capacity. 13. Defendant Rick Barry is the Chair of the State Board of Mental Health, and is responsible

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 4 of 11
for appointing a full-time Executive Director of the Department of Mental Health, which administers services for children and adolescents with intellectual developmental disabilities. Defendant Barry and the State Board of Mental Health are responsible for establishing and administering all IDD services on a state and regional level for the State of Mississippi; and supervising, coordinating, and establishing standards for all operations and activities in Mississippi related to the provision of IDD services, including those regarding services for children with behavioral or emotional disorders. Miss. Code § 41-4-7. Defendant Barry is sued in his official capacity. 14. Defendant Diana Mikula is the Executive Director of the Mississippi Department of Mental Health, the state agency responsible for administering, coordinating, developing, improving, and planning all services for individuals with intellectual developmental disabilities in Mississippi. Miss. Code § 41-4-1. Defendant Mikula is responsible for establishing and administering all IDD services on a state and regional level for the State of Mississippi; supervising, coordinating and establishing standards for all operations and activities in Mississippi related to the provision of IDD services, including those regarding services for children with behavioral or emotional disorders, Miss. Code § 41-4-7; obtaining funds from the State Legislature for Medicaid services; and organizing programs and services in a manner that maximizes funding through the Division of Medicaid. Miss. Code § 43-13-111. Defendant Mikula is sued in her official capacity. 15. At all times relevant to this action, Defendants have acted under color of state law.
JURISDICTION AND VENUE 16. This is an individual action authorized by 42 U.S.C. § 1983 to redress the ongoing deprivation under color of state law of rights guaranteed by the United States Constitution and

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 5 of 11
federal statutes. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 17. Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events and omissions giving rise to the claims herein occurred in this district, and because all Defendants named herein reside in, maintain offices in, or are responsible for enforcing the laws relevant to this litigation in this district.
STATUTORY BACKGROUND A. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act 18. Title II of the Americans with Disabilities Act prohibits public entities from discriminating against or excluding a qualified individual with a disability from participating in services, programs, or activities of the public entity on the basis of disability. 42 U.S.C. § 12132; 28 C.F.R. § 35.130. 19. The ADA requires 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). 20. Public entities also must make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7). 21. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, imposes identical requirements on state programs and activities that receive federal financial assistance. 22. The Defendants are discriminating against L.S. by failing to provide him with services in the most integrated setting appropriate to his needs. An integrated setting is one that allows an individual to live in his home or a home-like setting with natural family supports and the

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 6 of 11
opportunity to attend school and participate in his community with non-disabled peers. Defendants have chosen to serve L.S. in needlessly segregated settings. 23. Hospitals, psychiatric residential treatment facilities, and group homes are all restrictive settings that have severely limited L.S. from interacting with his family, school, peers, and community. Additionally, out-of-home placements exacerbate L.S.’s behavioral and emotional problems by severing these important community-based connections. By failing to provide adequate home-based and community-based services, Defendants have and continue to discriminate against L.S. by unnecessarily segregating him in violation of the ADA and Section 504.
STATEMENT OF FACTS A. L.S. is an adolescent with a moderate intellectual developmental disability. 24. L.S. is a nineteen year old adolescent from Southwest Mississippi. He is currently placed at the East Mississippi State Hospital (EMSH) in Meridian, Mississippi – more than two hours from his home. 25. L.S. has a primary diagnosis of moderate intellectual developmental disability with a secondary diagnosis of mental illness. 26. L.S. entered the foster care system at the age of four after a family tragedy. L.S. was eventually placed in the custody of his aunt, who became his legal guardian. 27. L.S. began to display behavioral and emotional problems at a young age, and was hospitalized at the age of eight, and again at age nine. He was placed in a private residential treatment center when he was ten. 28. Since then, L.S. has been subjected to nearly a dozen placements in long-term residential treatment centers, state hospitals, and group homes. He has also been homeless and needlessly

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 7 of 11
incarcerated as a result of the lack of services, programs, and activities in the most integrated setting appropriate to his needs. 29. L.S. has been most recently institutionalized at EMSH and Boswell Regional Center, a licensed Intermediate Care Facility for Individuals with Intellectual and Developmental Disabilities. L.S. is currently segregated, and at risk of future segregation, due to Defendants’ failure to provide medically necessary and legally mandated services to treat or ameliorate his IDD. B. Mississippi has distinct services systems for people with intellectual and
developmental disabilities and people with mental illness. 30. The mission statement of the Mississippi Department of Mental Health (DMH) is “Supporting a better tomorrow by making a difference in the lives of Mississippians with mental illness, substance abuse problems and intellectual/developmental disabilities one person at a time.” See http://www.dmh.ms.gov/wp-content/uploads/2015/06/2016-2017-MS-Dep-of-MentalHealth-State-Plan-for-review.pdf. 31. DMH has separate bureaus for mental health and intellectual/developmental disabilities. See http://www.dmh.ms.gov/who-we-are/central-office/. 32. The Bureau of Mental Health at the Mississippi Department of Mental Health is responsible for the planning, development, and supervision of an array of services for individuals served at the state’s six state behavioral health programs, which include services for individuals with mental illness, alcohol/drug services, and nursing homes. 33. The public service delivery system for individuals with mental illness includes four psychiatric hospitals; Central Mississippi Residential Center, a mental health community living program; and the Specialized Treatment Facility, a psychiatric residential treatment facility for adolescents with mental illness and a secondary need of substance use prevention/treatment. See

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 8 of 11
Mississippi Department of Mental Health Community Mental Health Services FY 2016-2017 State Plan, 7, available at http://www.dmh.ms.gov/wp-content/uploads/2015/06/2016-2017-MSDep-of-Mental-Health-State-Plan-for-review.pdf. 34. The Bureau of Intellectual and Developmental Disabilities at the Mississippi Department of Mental Health is responsible for planning, development, and supervision of an array of services for individuals in the state with intellectual and developmental disabilities. 35. This public service delivery system is comprised of five state operated comprehensive IDD programs for individuals with intellectual and developmental disabilities; the Mississippi Adolescent Center, an adolescent rehabilitation center for youth with intellectual and developmental disabilities whose behavior requires specialized treatment; regional community mental health centers; and other nonprofit community agencies/organizations that provide community services for individuals with IDD. See Mississippi Department of Mental Health Community Mental Health Services FY 2016-2017 State Plan, 8, available at http://www.dmh.ms.gov/wp-content/uploads/2015/06/2016-2017-MS-Dep-of-Mental-HealthState-Plan-for-review.pdf.
CAUSE OF ACTION Americans with Disabilities Act and Section 504 of the Rehabilitation Act 36. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 37. Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as though fully set forth herein. 38. L.S. is a qualified individual with a disability within the meaning of the ADA, and is an “otherwise qualified individuals with a disability” within the meaning of the Rehabilitation Act.

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 9 of 11
39. Defendants are public entities subject to the provisions of the ADA. Defendants receive federal financial assistance, and are thus subject to the provisions of the Rehabilitation Act. 40. Defendants have failed to administer services, programs, and activities in the most integrated setting appropriate to the needs of L.S., who has a developmental disability. Defendants have discriminated against L.S. by needlessly placing him in institutional settings. While in these settings, L.S. is segregated from the community and prevented from maintaining meaningful contact with his family, school, and community. 41. The relief sought by L.S. would not require the creation of services that are new to Mississippi or inconsistent with Mississippi’s stated public policies. Defendants are already legally mandated to provide L.S. with necessary home-based and community-based services. Accordingly, the relief sought by L.S. would not amount to a fundamental alteration within the meaning of the ADA or Section 504.
REQUEST FOR RELIEF WHEREFORE, plaintiff L.S. respectfully requests that this Court: 1. Declare unlawful Defendants’ failure to comply with the mandates of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act; 2. Enter a permanent injunction enjoining Defendants from subjecting L.S. to practices that violate his rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act; 3. Award to L.S. the reasonable cost and attorneys’ fees incurred in the prosecution of this action; 4. Award such other equitable and further relief as the Court deems just and proper.
RESPECTFULLY SUBMITTED, this the 24th day of April, 2017. /s/Lydia Wright Lydia Wright, MSB# 105186 Jody E. Owens, MSB# 102333

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 10 of 11
Southern Poverty Law Center 111 E. Capitol Street, Suite 280 Jackson, MS 39201 (601) 948-8882 (p) (601) 948-8885 (f) lydia.wright@splcenter.org jody.owens@splcenter.org
Ira Burnim, D.C. Bar No. 406145* The Bazelon Center for Mental Health Law 1101 5th Street NW, Suite 1212 Washington, D.C. 20005 202-467-5730 (phone) 202-223-0409 (fax) *pro hac vice
Ona T. Wang, N.Y. Bar No. 2987949* Deborah H. Renner, N.Y. Bar No. 2561728* Michelle Tanney, N.Y. Bar No. 5101910* Baker & Hostetler LLP 45 Rockefeller Plaza, 14th Floor New York, NY 10111 (212) 589-4200 (p) (212) 589-4201 (f) owang@bakerlaw.com drenner@bakerlaw.com mtanney@bakerlaw.com *pro hac vice
Counsel for Plaintiff

Case 3:10-cv-00153-HTW-MTP Document 158 Filed 04/24/17 Page 11 of 11
CERTIFICATE OF SERVICE I certify that I have this day electronically filed the foregoing with the Clerk of Court using the ECF system, which sent notification of such filing to all counsel of record. This the 24th day of April, 2017.
/s/ Lydia Wright

 
 Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 1 of 8

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

L.S. BY AN THROUGH HIS NEXT FRIEND, SHELIA DAVIS
vs.
GOVERNOR PHIL BRYANT, IN HIS OFFICIAL CAPACITY, et al.

PLAINTIFF CIVIL ACTION NO.: 3:10cv00153-HTW-MTP
DEFENDANTS

FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE THIS MATIER is before the Court on the Joint Motion of Plaintiff and Defendants to dismiss this case with prejudice. Plaintiff and Defendants have finally and fully compromised and settled their disputes on the terms set forth in the Settlement Agreement attached to this Final Judgment as Exhibit 1, which terms should be incorporated into and made a part of this Final Judgment. IT IS ORDERED that this matter is finally and fully compromised, settled, and dismissed with prejudice on the terms set forth in the Settlement Agreement attached to this Final Judgment as Exhibit 1, which terms are incorporated into and made a part of this Final Judgment. Pursuant to the Settlement Agreement, the District Court shall retain jurisdiction to enforce the terms of this Agreement post-dismissal until L.S.'s enrollment in the ID/DD Waiver or for nine months after L.S. 's transition to Boswell, whichever occurs earlier. IT IS ORDERED that the Agreed Order regarding TAC Report (Dkt. 163) is incorporated into and made a part of this Final Judgment. SO ORDERED, this the 30th day of June, 2017.
s/HENRYT. WINGATE UNITED STATES DISTRICT COURT JUDGE

PD.21616007.1

Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 2 of 8

IN THE UNITED STATES DISTRICI' COURT FORTHE SOUTHERN DISTRICI' OF MISSISSIPPI
NORTHERN DIVISION

L.S., by andthrough his nextftiend, Sheila Da'ris

PLAINTIFF

v.

Civil Action No. 3:1o..cv•153·HTW-MTP

GOVERNOR PHIL BRYANT, in his official capacity, et al.

DEFENDANTS

SEITLBMENT AGREEMENT

1. In April2017, Plaintifftiled an amended complaintin this mattet -alleging

that the Defendants violated the requirements oftha Americans with Disabilities Act

andSection 504 ofthe Rehabilitation Act. Dafendants have at all times denied

Plaintiffs' claims. To resol"e tbis·matter in an expeditious ma:n:her and to promote the

parties' common goals concerning community-based services for people with

disabilities, the parties have enteredinto this SettlementAgreement.

2. The pmpose ofthis Agreement is to conclude in all respects the litigation

pending in the United States District Court for the Southern District ofMississippi

beariug the cause number 3:1o~cv~153-HTW-MTP (''lawsuit"), including bot)l the merits

of the case, the applicable protective order, and Plaintiffs attorneys1fees and expenses.

3. For and in consideration ofthe promises and agreements set forth in this

Agreement~ the sufficiency of which is acknowledged, Plaintiff does hereby release,

acquit, and forever discharge Defendants, from any and all claims, dem.andsJ suits, liens,

debts, damages, costs, expenses and causeS of action of whatever nature in law or in ·

equity or in statute, intort or in contract, andjor injunctive relief, in any way directly or

EXHIBIT
I I

Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 3 of 8

indirectly connected with, related to, or arising out ofthe {a) cl~ms that have been or

could have been asserted in the Amended Complaint (Diet. 158) Plaintifffiled in the

Lawsuitj (b) the disputes giving rise to the .Ame~ded Complaint (Dlct. 158) Plaintifffiled

in the Lawsuit; (c) claims based on any alleged acts or omissions by Defendants

.....-..-.. '

regarding the matters at issue in the Amended Complaint (Dkt. 158) Plaintiff filed in the

Lawsui~ and/or (d) any claims that Plaintiff may have against Defendants as a result of

the condu~ action, or inaction of any other pa-son or entity in connection with or

arising out of the claims that were or could have been asserted in tbe Amended

Complaint (Dkt. 158) Plaintiff filed inthe Lawsuit ("Released Matters11), Plaintiff

covenants not to sue and not to assert any claitnS·or causes of action against Defendants

based on or arising out of tbe Released Matters.

4· Shelia Davis represents and warrants that she is fully authorized to execute

this Agreement for and on behalf of Plamtiff and as Plaintiffs legal representative and

next friend, and that she does so willingly~ freely, and withput duress or promise after

consultation with counsel of her choice.
s. This Release·is binding upon Plaintiffs heirs, successors and assigns.

6. This Agreement shall not and may not be offet•ed as, construed as, or used o.s

evidence of any kind in any action or proceeding as proof of any fact or point oflaw,

except in an action to enforce this Agreement.

7. This Agreement comprises the entire agreement of the parties with respect

to the subject matte: encompassed herein. Defendants have made no agreement or

p-romise to do or admit to do or perform &11Y act or thing not included and set forth in

Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 4 of 8
the Agreement B. This Agreement is the product of negotiations and each party has made
concessions and obtained favorable outcomes that might not have been obtained if this case had been decided by the Court. The parties recognize·ths.t a negotiated agreement is preferable to further protractedlitigation and enter into this Agreement in.support of the rights ofpeople with disabilities to receive necessary support services in the most integrated setting.
9. Each party has participated in the negotiation and drafting of thls Agreement and freely enters into this Agreement following consultation with and advice by counsel. All undersigned counsel of record for the parties have complete authority to execute this Agreement on behalf of their clients.
10. Entry htto this Agreement shall not be.construed as an admission of liability by Defendants.
11. The terms ofthls .Agteetnent may be modified only in writing and signed by all parties or their counsel.of record.
12. Within twenty~one days ofthe execution of tlrls agreement, the Mississippi Department of Mental Health will transition L.S. fron1 his current location at East Mississippi State Hospital to the Intel'mediate Care Facility Program licensed to provide care for individuals with an Intellootual Disability at Boswell Regional Center located in Magee, Mississippi. The Intermediate Care Facility Program at Boswell shall offer to L.S. on the same terms as any other program participant psychological seJ;Yiees ineluding counseling, psychiatric services including medication management in
3

Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 5 of 8
conjunction with a behavioral support plan, social services, nutsing/medical services, dieta:ry services, speeahjlanguage therapy, rec.reation therapy, and physical
therapyIoccupational therapy. A Qualified Intellectual Disabilities Professional will be
assigned to L.S. to coordinate an Individual Support Plan. Boswell shall also offer L.S. the opportunity to obtain a state issued identification card or driver's license, ifhe so qualifies under applicable law.
13. The Department of Mental Health further agrees·that LS. is eligible and will be enrolledin the ID/DD Waiver Program pursuant to the t.enns of this Agreement and applicable law. While in the Intermediate Care Facility Program at Boswell, the Department of Mental Health will conduct a Person Centered Planning Meeting to evaluate L.S. !or the purposes of developing a plan of services and supports and thereby determine which ID/DD Waiver services L.S. is qualified to receive. The parties shall work towards the goal ofcompleting L.S.'s assessment within ninety days or earlier of his arrival at BosweU. The Department's offer to enroll L.S. in the ID/DD Waiver shall remain open for nine montbs aftet L.S.'s transition to Boswell. The Department of Mental Healtl1 cannot guarantee or malte any assuran~ as- to whether a private provider will be available and willing to provide ID/DD Waiver services to L.S.
14. L.S. shall be provided services in the Intermediate Care Facility Program and the ID/DD waivet· subject to the same terms, conditions, and restrictions applicable
to all similarly situated participants. .L.S.'s participation in t.he Intermediate Care
Facility Program at Boswell and the ID/DD Waiver is conditioned upon L.S. meeting the medical and other criteria ofthose programs. In the event that L.S. becomes
4

Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 6 of 8
psychiatrically unstable or decompensates to the point that his psychiatric needs ~annot be adequately met at Boswell or another Department of Mental Health Intermediate Care Facility Program licensed to provide catefor individuals with an Intellectual Disability or through the ID/DD Waiver, the Department of Mental Health shall be allowed to transfer L.S. to another program within the Department ofMental Health system after completion of a fonnal assessment to determine tbe appropriate program to which L.S. should be transferred. However, once L.S. begins participation in the ID/DD Waiver Program, he wl11 not be involuntarily removed from that progran1 except as allowed by applicable law and regulations. Any msputes over L.S:s-ellgJ.oiltty and enrolhnent in the ID/DD Waiver Program will be subn1itted to the.appUcable agency admin'isb:ative process; if resolution is not achieved, then the terms of paragJ.-aph 18 shall apply. Otherwise, any dispute over L.S.'s satisfaction of the relevant criteria or his adherence to and cooperation with the roles, guidelines, and treatment recommendations, or over the type, amount, duration, or scope of sel-vices provided to L.S. in the Intermediate Care Facility Program or the ID/DD waiver will be resolved
through the administrative process procedures applicable to the program aud is not part
ofthis Agreement 15· This Agreement is expressly couditioned upon, and shall be effective upon,
the entry by the District Court ofan order dismissing this cause with prejudice. This Agreement shall automatically terminate upon L.S.'s enrollment in the ID/DD Waiver or withi11 nine months tJf L.S.'s transition to Boswell, whichever occurs earlier. The District Court shall retain jurisdiction to enforce the terms ofthis Agreement post~d:ismissal
5

Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 7 of 8

until L.S.'s enrollment inthe ID/DD Waiver or for nine months after L.S.'s transition to Boswell, whichever occurs earlier. An order of ~issal agreed to by the parties is attached hereto as Exhibit A.
16; Both parties agree that the protective order entered by this Court should · be vacated upon the enb:y ofthe Court's order dismissing thls cause with prejudice. · .·-.·
17. Defendants.agree topayL.S.'s attorney, Gxaham P. Carner, attorney's fees·· . in the amount of $7,500 for time expended in representation of ~.S. in this litigation. .. Defendants ~hall not be obligated to pay any other attorneys, fees in connection with this litigation. Other than fue.above payment, each party shall bear its own costs and atto:rneys1 fees in connection with this case.
18. Ifthe parties have any questions or issues as to implementation ofthe ·. provisions ofthis Agreement, the parties will negotiate in good faith to resolve such issues. After attempting to resolve the matter through good faith negotiations, a party may seelt the assistance of the magistrate judge and, thereafter, the district court judge.

ianaMUtula in her official capacity as
Executive Director Mississi i De artment of Menta] Health

Shelia Davis Next of Friend of IPIM@I LS.

Dr. DavidJ. · in his official.capacity as Executive Director,
Mississippi Division of Medicaid

Redac:ed L.S's name redacted

6

Case 3:10-cv-00153-HTW-MTP Document 165 Filed 06/30/17 Page 8 of 8

t,mtil);;_;~·~ e}lJ·oJ4neP.t:1U.l;be.-W)It§.Wibfer.JJ!'ifQ'.\ ·I)llie+h:t:in:th.s:af.l;er. L.S.;'s trilHs.li:icin t:c1 · ~es~'lr.e.1li'$1cli<lvm oceurs:earlier, ~~ol'deu:of.d]s~.is~Ul.:a~J.::~t>.d te:Py·tile -~aroe5:is
.flttacbed::4{:ir~o.-~s E¢hibi~
16. B.oth;pa!;ties,:a~e~;ihatth.l} ~~-Gte9frve.'l'i:rodh:¢:nt:ere.db)cthls·Gollrt;sbop1d · be;..t~ca~eciu:Qorfthe\~liti')•·of:tlle CQrjtfs-o!~.r- d!:s~~singtbis,oal:Jse)~~th ·pr'~j.udice.
J.7. D.efeniiantsia-g"teeto-:p.a:r.t.'S:"s.--#tiorn~y, G~iili.am'P. Ca.rneri:arienne.y.'~ ·fe"es l!i th:e·:~ount qf'~:11S{}Q :f~rti.m.~.e.xpeoocid.ln·rep~·es~titr:.tl,oJ;l of'L.S. iJ;J '$.-i? ~iijga.tion.
rDhie.!fiB.1ui.t_di;gu~itfi;5osn-h.a.Oilt:nHo~'bf.btiie~_~:o-Qb.:'Jii:gAAa-~tbegdv..r~o<Qp.aayi~:aneniyl.·o~teh-aeqrl.1.atpat,btrfn:e_yy.s~~h~flebeesa;irii··*:C"O·i;t!mV~Jelc:Itci,oo~tit.·vs.'.ai,t;l,1d.
~at'1.'0t:DCf~;i ·fees.m~CO.im¢ctib');!,Vvith :ffiis·case, ··
:i8. T.fth~]aftii~~H\a~'e;aJ.l?A.U~?.o~m~. qr~~~cs·a~to unP~~IIJ:~h~\i~~-<>f.tlie:
'l?l'o''isfo'llS:of'tlu~.:f;&fe.eifi~nt,,theyartres:wi:ll I)¢toti:at~:in~&"oqcLi~:ith·to resoive.sucO: isst?-es. Af'ter ~ti;~TTipti.ngJo·'resolve'tb~.bJ.a\tei:''fr;Irot~l.1 gociQ.f·iri.fu: ri¢gqfj~~Bt'ls, .a p~ ur~y !';e~llyh~ :rissist~c~·-o.ffheroag;istr.ate):udge:and, thereafter, the,~listr.Ict"r.oi)r.t~y.1ge.

.br~ ba.,n.d:,J;.Dzielak

· j'Ej~:l~Juu,~h~~~f•§e~i.P.lntWe~ctt<l~_arc,!ti w>

.

Mi$*~~pi biy,~oi). ofM_eilt~9-

'f)

\-

I "'-·-~"11 •:-,._

 
 Case 3:10-cv-00153-HTW-MTP Document 164 Filed 06/29/17 Page 1 of 3

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

L.S. BY AND THROUGH HIS NEXT FRIEND, SHELIA DAVIS
vs.
GOVERNOR PHIL BRYANT, IN HIS OFFICIAL CAPACITY, et al.

PLAINTIFF CIVIL ACTION NO.: 3:10cv00153-HTW-MTP
DEFENDANTS

JOINT MOTION TO DISMISS WITH PREJUDICE Plaintiff and Defendants request that this matter be dismissed with prejudice as follows: 1. Plaintiff filed an Amended Complaint on April24, 2017 (Dkt. 158), which names L.S. as the sole Plaintiff in this case. 2. Plaintiff and Defendants have finally and fully compromised and settled their disputes on the terms set forth in the Settlement Agreement entered into by the parties. 3. The terms of the Settlement Agreement should be incorporated into and made a part of the Final Judgment attached to this Joint Motion as Exhibit "A." 4. Plaintiff and Defendants request that the requirement of a separate memorandum be waived.
Relief Requested This matter should be dismissed with prejudice on the terms set forth in the Settlement Agreement entered into by the parties, which terms should be incorporated into and made a part of the Final Judgment attached to this Joint Motion as Exhibit "A," with each party to bear its own costs. This the 29th day of June, 2017.

PD.21616156.1

Case 3:10-cv-00153-HTW-MTP Document 164 Filed 06/29/17 Page 2 of 3
Respectfully submitted,
PHELPS DUNBAR LLP
BY: Is/ James W Shelson Reuben V. Anderson, MB 1587 W. Thomas Siler, MB 6791 James W. Shelson, MB 9693 R. Gregg Mayer, MB 102232 A. Martin Edwards, IV, MB 104677 4270 I-55 North Jackson, Mississippi 39211-6391 Post Office Box 16114 Jackson, Mississippi 39236-6114 Telephone: 601-352-2300 Telecopier: 601-360-9777 Email: andersor@phelps.com silert@phelps.com shelsonj@phelps.com gregg.mayer@phelps.com martin.edwards@phelps.com
Harold Pizzetta, III, Esq., MB 99867 Assistant Attorney General General Civil Division Walter Sillers Building 550 High Street Jackson, MS 39201
Attorneys for the State of Mississippi

PD.21616156.1

BY: Is/ Graham P. Carner Graham P. Carner, MB Graham P. Carner, PLLC 775 N. Congress Street Jackson, Mississippi 39202 Telephone: 601-949-9456 Telecopier: 601-354-7854 Email: graham.carner@gmail.com
Attorney for the Plaintiff
2

Case 3:10-cv-00153-HTW-MTP Document 164 Filed 06/29/17 Page 3 of 3 CERTIFICATE OF SERVICE
I certify that on June 29, 2017, I electronically filed this document with the Clerk of the Court using the ECF system, which sent notification of such filing to all ECF counsel of record in this action.
Is/ James W Shelson JAMES W. SHELSON
3
PD.21616156.1

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 1 of 8

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

L.S. BY AN THROUGH HIS NEXT FRIEND, SHELIA DAVIS
vs.
GOVERNOR PHIL BRYANT, IN HIS OFFICIAL CAPACITY, et al.

PLAINTIFF CIVIL ACTION NO.: 3:10cv00153-HTW-MTP
DEFENDANTS

FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE THIS MATTER is before the Court on the Joint Motion of Plaintiff and Defendants to dismiss this case with prejudice. Plaintiff and Defendants have finally and fully compromised and settled their disputes on the terms set forth in the Settlement Agreement attached to this Final Judgment as Exhibit 1, which terms should be incorporated into and made a part of this Final Judgment. IT IS ORDERED that this matter is finally and fully compromised, settled, and dismissed with prejudice on the terms set forth in the Settlement Agreement attached to this Final Judgment as Exhibit 1, which terms are incorporated into and made a part of this Final Judgment. Pursuant to the Settlement Agreement, the District Court shall retain jurisdiction to enforce the terms of this Agreement post-dismissal until L.S.'s enrollment in the ID/DD Waiver or for nine months after L.S.'s transition to Boswell, whichever occurs earlier. IT IS ORDERED that the Agreed Order regarding TAC Report (Dkt. 163) is incorporated into and made a part of this Final Judgment. SO ORDERED, this the __ day of _ _ _ _ _ _, 2017.

UNITED STATES DISTRICT COURT JUDGE

PD.21616007.1

~:0

A EXHIBIT

.D

l!l

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 2 of 8

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

L.S., by and through his next friend, Sheila Davis

PLAINTIFF

v.

Civil Action No. 3:10-cv-153-HTW-MTP

GOVERNOR PIIIL BRYANT,
in his official capacity, et al.

DEFENDANTS

SETILEMENT AGREEMENT

1. In April2017, Plaintiff filed an amended complaint in this matter alleging

that the Defendants violated the requirements of the Americans with Disabilities Act

andSection 504 of the Rehabilitation Act. Defendants have at all times denied

Plaintiffs' claims. To resolve this matter in an expeditious maniler and to promote the

parties' common goals concerning community-based services for people with

disabilities, the parties have entered into this Settlement Agreement.

2. The purpose of this Agreement is to conclude in all respects the litigation

pending in the United States District Court for the Southern District of 1flssissippi

bearing the cause number 3:10-cv~tss-HTW-MTP ("lawsuit"), including both the merits

of the case, the applicable protective order, and Plaintiffs attorneys' fees and expenses.

3. For and in consideration of the promises and agreements set forth in this

Agreement, the sufficiency of which is acknowledged, Plaintiff does hereby release,

acquit, and forever discharge Defendants, from any and all claims, demands, suits, liens,

debts, damages, costs, expenses and causes of action of whatever nature in law or in

equity or in statute, in tmt or in contract, and/or injunctive relief, in any way directly or

EXHIBIT
I I

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 3 of 8
indirectly connected with, related to, or arising out of the (a) claims that have been or could have been asserted in the Amended Complaint (Dkt. 158) Plaintiff filed in the Lawsuit; (b) the disputes giving rise to the Amended Complaint (Dlet. 158) Plaintiff filed in the Lawsuit; (c) claims based on any alleged acts or omissions by Defendants regarding the matters at issue in the Amended Complaint (Dkt. 158) Plaintiff filed in the Lav.,rsuit, and/or (d) any claims that Plaintiff may have against Defendants as a result of the conduct, action, or inaction of any other person or entity in connection with or arising out of the claims that were or could have been asserted in the Amended Complaint (Dkt. 158) Plaintiff filed in the Lawsuit ("Released Matters"). Plaintiff covenants not to sue and not to assert any claims or causes of action against Defendants based on or arising out of the Released Matters.
4. Shelia Davis represents and warrants that she is fully authorized to execute
this Agreement for and on behalf of Plaintiff and as Plaintiffs legal representative and next friend, and that she does so willingly, freely, and without duress or promise after consultation with counsel of her choice.
5. This Release is binding upon Plaintiffs heirs, successors and assigns. 6. This Agreement shall not and may not be offered as, construed as, or used as evidence of any kind in any action or proceeding as proof of any fact or point oflaw, except in an action to enforce this Agreement. 7. This Agreement comprises the entire agreement of the parties with respect to the subject matter encompassed herein. Defendants have made no agreement or promise to do or admit to do or perform any act or thing not included and set forth in

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 4 of 8
the Agreement. 8. This Agreement is the product of negotiations and each party has made
concessions and obtained favorable outcomes that might not have been obtained if this case had been decided by the Court. The parties recognize. that a negotiated agreement is preferable to further protracted litigation and enter into this Agreement in support of the rights of people with disabilities to receive necessary support services in the most integrated setting.
9. Each party has participated in the negotiation and drafting of this Agreement and freely enters into this Agreement following consultation with and advice by counsel. All undersigned counsel of record for the parties have complete authority to execute this Agreement on behalf of their clients.
10. Entry into this Agreement shall not be construed as an admission of liability by Defendants.
11. The terms of this Agreement may be modified only in writing and signed by all parties or their counsel of record.
12. Within twenty-one days of the execution of this agreement, the Mississippi Department of Mental Health will transition L.S. from his current location at East Mississippi State Hospital to the Intermediate Care Facility Program licensed to provide care for individuals with an Intellectual Disability at Boswell Regional Center located in Magee, Mississippi. The Intermediate Care Facility Program at Boswell shall offer to L.S. on the same terms as any other program participant psychological services including counseling, psychiatric services including medication management in
3

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 5 of 8
conjunction with a behavioral support plan, social services, nursing/medical services, dietary services, speechj1anguage therapy, recreation therapy, and physical
therapyJoccupational therapy. A Qualified Intellectual Disabilities Professional will be
assigned to L.S. to coordinate an Individual Support Plan. Boswell shall also offer L.S. the opportunity to obtain a state issued identification card or driver's license, if he so qualifies under applicable law.
13. The Department of Mental Health further agrees that L.S. is eligible and will be enrolled in the ID/DD Waiver Program pursuant to the terms of this Agreement and applicable law. While in the Intermediate Care Facility Program at Boswell, the Department of Mental Health Vlrill conduct a Person Centered Planning Meeting to evaluate L.S. for the purposes of developing a plan of services and supports and thereby determine which ID/DD Waiver services L.S. is qualified to receive. The parties shall work towards the goal of completing L.S.'s assessment within ninety days or earlier of his arrival at Boswell. The Department's offer to enroll L.S. in the ID/DD Waiver shall remain open for nine months after 1.S.'s transition to Boswell. The Department of Mental Health cannot guarantee or make any assurances as to whether a private provider will be available and Vlrillingto provide ID/DD Waiver services to L.S.
14. L.S. shall be provided se-rvices in the Intermediate Care Facility Program and the ID/DD waiver subject to the same terms, conditions, and restrictions applicable to all similarly situated participants. L.S.'s participation in the Intermediate Care Facility Program at Boswell and the ID/DD Waiver is conditioned upon L.S. meeting the medical and other criteria of those programs. In the event that L.S. becomes
4

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 6 of 8
psychiatrically unstable or decompensates to the point that his psychiatric needs cannot be adequately met at Boswell or another Department of Mental Health Intermediate Care Facility Program licensed to provide care for individuals with an Intellectual Disability or through the ID/DD Waiver, the Department of Mental Health shall be allowed to transfer L.S. to another program within the Department ofMental Health system after completion of a formal assessment to determine the appropriate program to which L.S. should be transferred. However, once L.S. begins participation in the ID/DD Waiver Program, he will not be involuntarily removed from that program except as allowed by applicable law and regulations. Any disputes over L.S.'s eligibility and enrollment in the ID/DD Waiver Program will be submitted to the applicable agency administrative process; if resolution is not achieved, then the terms of paragraph 18 shall apply. Otherwise, any dispute over L.S.'s satisfaction of the relevant criteria or his adherence to and cooperation with the rules, guidelines, and treatment recommendations, or over the type, amount, duration, or scope of services provided to L.S. in the Intermediate Care Facility Program or the ID/DD waiver will be resolved through the administrative process procedures applicable to the program and is not part of this Agreement.
15. This Agreement is expressly conditioned upon, and shall be effective upon,
the entry by the District Court of an order dismissing this cause with prejudice. Tills Agreement shall automatically terminate upon L.S.'s enrollment in the ID/DD Waiver or
within nine months .of L.S.'s transition to Boswell, wllichever occurs earlier. The District Court shall retain jurisdiction to enforce the terms ofthis Agreement post-dismissal
5

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 7 of 8

until L.S.'s enrollment :in the ID/DD Waiver or for nine months after L.S.'s transition to

Boswell, whichever occurs earlier. An order of dismissal agreed to by the parties is

attached hereto as Exhibit A.

16. Both parties agree that the protective order entered by this Court should

be vacated upon the entiy of the Court's order dismissing thls cause with prejudice.

17. Defendants agree to pay L.S.'s attorney, Graham P. Carner, attorney's fees

in the amount of $7,500 for time expended in representation of L.S. in this litigation.

Defendants shall not be obligated to pay any other attorneys' fees in connection with

this litigation. Other than the above payment, each party shall bear its own costs and

attorneys' fees in connection with this case.

18. If the parties have any questions or issues as to implementation of the

provisions of this Agreement, the parties Vl7].ll negotiate in good faith to resolve such

issues. After attempting to resolve the matter through good faith negotiations, a party

may seek the assistance ofthe magistrate judge and, thereafter, the district court judge.

A reed to, this the~ da of June, 2017.

~~~

~Sh-e=lia_D_a-~-·s______________

in her official capacity as Executive Director Mississi i De rutment of Mental Health

Next ofFtiend of!;§t!Tilt;l L.S.

Dr. David J. zielak in his official capacityas Executive Director, Mississippi Division of Medicaid

Redacted L.S's name redacted

6

Case 3:10-cv-00153-HTW-MTP Document 164-1 Filed 06/29/17 Page 8 of 8

unti'l L.$;s em-ollmentintbeiD/DD Wa'hfer ar for nine monti_'is after L.S.'s transition to

i6. Botbparties a.greethatth~ protective orde.renteredby thls Courtshou1d be vacated upon the :ent:tyoftl-xe Cctnrfs order dismissing this cause v.1th prejudice.

17• Defendants agree to pay L.K':s attorney, Graham P. Carner; attorney's fees
inthe amount o:f $7;500 fortinieeipendeditf.representation of LS- in this litigation. Defendants shall notbe obligated. to pa)' any other attorneys' fees in connection vd.th

this litiga.tion. Ot;be:r than the above payment, each party shall bear its ovm cost5 a11d attorneys' fees in coooection,v.itllthis case,
18. Ifthepa..'lties have any qlie$tkms or issues as to implementation ofthe

provisions oftliis Agreement, the'parties v.'ill negotl.ate in good faith to resolve such issues~ After attempting to resolve the matter through goodfaith negotiations, a party may seelt the assistance ,ofthe magistrate judge and, thereafter, the clistrlct cou:r.tjudge.

Agreed to, this the J.Jv-day of June, 2017.
IDiana Mikula--···--- . ~-----·lShe~a-=- .

-· ...=--··~~

I in her official capacity as
IL~E1xisesciusstiivpJe?Di Dierpe~cJi,m!!2lent qf.Menta1 ~.ealth

~e:hi: ofFdcnd qfliM!Mtml L.S,
IJD'J tou11 "-f~\ .{....I . #J&

I
&

I
1Dr. Da\'idJ~ Dziclak
1nbis official capadiyas
1,. .Executive Director, ·:j. M1ssissip:_pi Division ofMedi~d

I

I I

j. L.S's name & signature redacted

.l

j
i

·
I

6

Troupe et al v. Barbour et al, Docket No. 3:10-cv-00153 (S.D. Miss. Mar 10, 2010), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Southern District of Mississippi; United States District Court for the Southern District of Mississippi Civil Rights - Other[440] 3:10-cv-00153 CLOSED

© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 13

 
 U.S. District Court Southern District of Mississippi (Northern (Jackson)) CIVIL DOCKET FOR CASE #: 3:10-cv-00153-HTW-MTP

Troupe et al v. Barbour et al Assigned to: District Judge Henry T. Wingate Referred to: Magistrate Judge Michael T. Parker Related Case: 3:04-cv-00251-TSL-FKB Cause: 42:1983 Civil Rights Act

Date Filed: 03/10/2010 Date Terminated: 06/30/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Mary Troupe J. B. and L. P., by and through their next friend Mary Troupe TERMINATED: 03/19/2017

represented by Brooke L. McCarthy SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Fax: 601/948-8885 Email: brooke.mccarthy@splcenter.org TERMINATED: 09/21/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Deborah Hilarie Renner - PHV BAKER HOSTETLER, LLP - New York 45 Rockefeller Plaza, 14th Floor New York, NY 10111 212/589-4654 Fax: 212/589-4201 Email: drenner@bakerlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jenna Nicole Felz - PHV BAKER HOSTETLER, LLP - New York 45 Rockefeller Plaza, 14th Floor New York, NY 10111 212/589-4658 Fax: 212/589-4201 Email: jfelz@bakerlaw.com TERMINATED: 01/20/2017 LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Jerri Katzerman - PHV SOUTHERN POVERTY LAW CENTER Montgomery P. O. Box 2087 400 Washington Avenue (36104) Montgomery, AL 36102 334/956-8320 Fax: 334/956-8481 Email: jerri.katzerman@splcenter.org (Inactive) TERMINATED: 04/13/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Nicole Tanney - PHV BAKER HOSTETLER, LLP - New York 45 Rockefeller Plaza, 14th Floor New York, NY 10111 212/589-4292 Fax: 212/589-4201 Email: mtanney@bakerlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ona Wang - PHV BAKER HOSTETLER, LLP - New York 45 Rockefeller Plaza, 14th Floor New York, NY 10111 212/589-4200 Fax: 212/589-4201 Email: owang@bakerlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Judith Carroll SOUTHERN POVERTY LAW CENTER New Orleans 1055 St. Charles Ave., Suite 505 New Orleans, LA 70130 6083547149

Fax: 504/486-8947 Email: vanessa.carroll@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa F. Johnson SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Email: elissa.johnson@splcenter.org TERMINATED: 09/10/2015 ATTORNEY TO BE NOTICED
Ira A. Burnim - PHV BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, DC 20005 202/467-5730 - ext 320 Fax: 202/223-0409 Email: irabster@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jody E. Owens , II SOUTHERN POVERTY LAW CENTER Jackson 921 North President Street, Suite B Jackson, MS 39202 601/948-8882 Fax: 601/948-8885 Email: jody.owens@splcenter.org ATTORNEY TO BE NOTICED
Joseph Andrew Canter SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882 Fax: 601/948-8885 Email: andrew.canter@splcenter.org (Inactive) TERMINATED: 08/26/2014

ATTORNEY TO BE NOTICED
Juvaria Khan - PHV BAKER & HOSTETLER, LLP - New York 45 Rockefeller Plaza, 14th Floor New York, NY 10111 212/589-4200 Fax: 212/589-4201 TERMINATED: 11/10/2016 PRO HAC VICE
Lydia A. Wright BURNS CHAREST, LLP 365 Canal St., Ste. 1170 New Orleans, LA 70130 504/799-2845 Fax: 504/881-1765 Email: lwright@burnscharest.com ATTORNEY TO BE NOTICED
Naima Garvin - PHV BAKER & HOSTETLER, LLP - New York 45 Rockefeller Plaza, 14th Floor New York, NY 10111 212/589-4200 Fax: 212/589-4201 TERMINATED: 11/10/2016 PRO HAC VICE
Robert B. McDuff MCDUFF & BYRD 767 North Congress Street Jackson, MS 39202 601/969-0802 Fax: 601/969-0804 Email: RBM@McDuffLaw.com ATTORNEY TO BE NOTICED
Sheila A. Bedi SOUTHERN POVERTY LAW CENTER Jackson 111 East Capitol Street, Suite 280 Jackson, MS 39201 601/948-8882

Plaintiff
Trasie Howard L.M., by and through his next friend Trasie Howard TERMINATED: 03/19/2017

Fax: 601/948-8885 Email: sheila.a.bedi@gmail.com TERMINATED: 08/27/2012 ATTORNEY TO BE NOTICED
represented by Brooke L. McCarthy (See above for address) TERMINATED: 09/21/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Hilarie Renner - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jenna Nicole Felz - PHV (See above for address) TERMINATED: 01/20/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jerri Katzerman - PHV (See above for address) TERMINATED: 04/13/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Nicole Tanney - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ona Wang - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Judith Carroll (See above for address)

Plaintiff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa F. Johnson (See above for address) TERMINATED: 09/10/2015 ATTORNEY TO BE NOTICED
Ira A. Burnim - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jody E. Owens , II (See above for address) ATTORNEY TO BE NOTICED
Joseph Andrew Canter (See above for address) TERMINATED: 08/26/2014 ATTORNEY TO BE NOTICED
Juvaria Khan - PHV (See above for address) TERMINATED: 01/13/2014 PRO HAC VICE
Lydia A. Wright (See above for address) ATTORNEY TO BE NOTICED
Naima Garvin - PHV (See above for address) TERMINATED: 11/10/2016 PRO HAC VICE
Robert B. McDuff (See above for address) ATTORNEY TO BE NOTICED
Sheila A. Bedi (See above for address) TERMINATED: 08/27/2012 ATTORNEY TO BE NOTICED

Sheila Davis L.S., by and through his next friend Sheila Davis

represented by Brooke L. McCarthy (See above for address) TERMINATED: 09/21/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Hilarie Renner - PHV (See above for address) TERMINATED: 05/24/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Graham P. Carner GRAHAM P. CARNER, PLLC 771 North Congress Street Jackson, MS 39202 601/949-9456 Fax: 601/354-7854 Email: graham.carner@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jenna Nicole Felz - PHV (See above for address) TERMINATED: 01/20/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jerri Katzerman - PHV (See above for address) TERMINATED: 04/13/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Nicole Tanney - PHV (See above for address) TERMINATED: 05/24/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ona Wang - PHV (See above for address)

TERMINATED: 05/24/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Vanessa Judith Carroll (See above for address) TERMINATED: 05/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elissa F. Johnson (See above for address) TERMINATED: 09/10/2015 ATTORNEY TO BE NOTICED
Ira A. Burnim - PHV (See above for address) TERMINATED: 05/24/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
Jody E. Owens , II (See above for address) TERMINATED: 05/24/2017 ATTORNEY TO BE NOTICED
Joseph Andrew Canter (See above for address) TERMINATED: 08/26/2014 ATTORNEY TO BE NOTICED
Juvaria Khan - PHV (See above for address) TERMINATED: 11/10/2016 PRO HAC VICE
Lydia A. Wright (See above for address) TERMINATED: 05/24/2017 ATTORNEY TO BE NOTICED
Naima Garvin - PHV (See above for address) TERMINATED: 11/10/2016 PRO HAC VICE

V. Consol Plaintiff United States of America

Robert B. McDuff (See above for address) TERMINATED: 05/24/2017 ATTORNEY TO BE NOTICED
Sheila A. Bedi (See above for address) TERMINATED: 08/27/2012 ATTORNEY TO BE NOTICED
represented by 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 LEAD ATTORNEY 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 LEAD ATTORNEY 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 Fax: 202/514-4883 Email: beth.kelley@usdoj.gov LEAD ATTORNEY 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 LEAD ATTORNEY 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 LEAD ATTORNEY 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven H. Rosenbaum-Federal Gov U. S. DEPARTMENT OF JUSTICEHousing & 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanita Gupta-Federal Gov U. S. DEPARTMENT OF JUSTICEHousing & Civil Enforcement Sect Civil Rights Division 950 Pennsylvania Avenue NW Washington, DC 20530

V. Intervenor Plaintiff Olivia Y. Plaintiffs

202/305-3105 Email: vanita.gupta@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mathew Schutzer-Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW Washington, DC 20350 Email: mathew.schutzer@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 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
represented by W. Wayne Drinkwater , Jr. BRADLEY ARANT BOULT CUMMINGS LLP - Jackson P.O. Box 1789 Jackson, MS 39215-1789 601/948-8000 Fax: 601/948-3000 Email: wdrinkwater@babc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Polansky - PHV CHILDREN'S RIGHTS 330 Seventh Avenue, 4th Floor

New York, NY 10001 212/683-2210 Fax: 212/683-4015 Email: jpolansky@childrensrights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shirim Nothenberg - PHV CHILDREN'S RIGHTS, INC. 330 Seventh Avenue, 4th Floor New York, NY 10001 212/683-2210 x319 Fax: 212/683-4015 Email: snothenberg@childrensrights.org (Inactive) ATTORNEY TO BE NOTICED

V.

Defendant

Haley Barbour

represented by Shawn Stephen Shurden-State Gov

Governor, in his official capacity

OFFICE OF THE ATTORNEY

GENERAL

P.O. Box 220

550 High Street (39201)

Jackson, MS 39205-0220

LEAD ATTORNEY

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 ATTORNEY TO BE NOTICED

Harold Edward Pizzetta-State Gov , III OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 550 High Street (39201) Jackson, MS 39205-0220 601/359-3680

Email: hpizz@ago.state.ms.us
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
Mary Jo Woods-State Gov OFFICE OF THE ATTORNEY GENERAL P.O. Box 220 550 High Street (39201) Jackson, MS 39205-0220 601/359-3680 Email: mwood@ago.state.ms.us
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 Email: Mayerg@phelps.com 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

Defendant
Robert L. Robinson in his official capacity as Directory of the Mississippi Division of Medicaid

601/352-2300 Fax: 601/360-9777 Email: silert@phelps.com ATTORNEY TO BE NOTICED
Wilson D. Minor-State Gov MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 550 High Street (39201) Jackson, MS 39205-0220 601/359-6279 Fax: 601/359-2003 Email: wmino@ago.state.ms.us ATTORNEY TO BE NOTICED
represented by Shawn Stephen Shurden-State Gov (See above for address) LEAD ATTORNEY
Arthur Martin Edwards , IV (See above for address) ATTORNEY TO BE NOTICED
Harold Edward Pizzetta-State Gov , III (See above for address)
James W Shelson (See above for address) ATTORNEY TO BE NOTICED
Mary Jo Woods-State Gov (See above for address)
Reuben V. Anderson (See above for address) ATTORNEY TO BE NOTICED
Robert Gregg Mayer (See above for address) ATTORNEY TO BE NOTICED
William T. Siler , Jr. (See above for address) ATTORNEY TO BE NOTICED

Wilson D. Minor-State Gov (See above for address) ATTORNEY TO BE NOTICED

Defendant
Patricia Ainsworth in her official capacity as chair of the Mississippi Board of Mental Health

represented by Shawn Stephen Shurden-State Gov (See above for address) LEAD ATTORNEY
Harold Edward Pizzetta-State Gov , III (See above for address)

Mary Jo Woods-State Gov (See above for address)

Defendant
Edwin C. Legrand in his official capacity as Executive Director of the Mississippi Department of Mental Health

represented by Shawn Stephen Shurden-State Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harold Edward Pizzetta-State Gov , III (See above for address) ATTORNEY TO BE NOTICED

Mary Jo Woods-State Gov (See above for address) ATTORNEY TO BE NOTICED

Defendant Phil Bryant

Defendant David J Dzielak

represented by Harold Edward Pizzetta-State Gov , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Diana S Mikula

represented by Harold Edward Pizzetta-State Gov , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Rick Barry

V. Consol Defendant State of Mississippi
Interested Party U.S. Department Of Justice

represented by Arthur Martin Edwards , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James W Shelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reuben V. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Gregg Mayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William T. Siler , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Raish-Federal Gov U. S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW - NYA Washington, DC 20530 202/305-1321 Fax: 202/307-1197 Email: anne.raish@usdoj.gov ATTORNEY TO BE NOTICED
Deena Fox-Federal Gov (See above for address) ATTORNEY TO BE NOTICED

Elizabeth C. Kelley-Federal Gov (See above for address) ATTORNEY TO BE NOTICED
Mitzi Dease Paige-Federal Gov (See above for address) ATTORNEY TO BE NOTICED
Ryan C. Wilson-Federal Gov U. S. DEPARTMENT OF JUSTICE - Civil Rights Division Educational Opportunities Section 950 Pennsylvania Avneue, NW PHB, Suite 4300 Washington, DC 20530 202/305-9937 Fax: 202/514-8337 Email: ryan.wilson@usdoj.gov ATTORNEY TO BE NOTICED

V.
Intervenor
Gannett River States Publishing Corporation d/b/a The Clarion-Ledger

represented by Leonard D. Van Slyke , Jr. BRUNINI, GRANTHAM, GROWER & HEWES, PLLC-Jackson P. O. Drawer 119 Pinnacle Bldg., Suite 100 190 East Capitol St. (39201) Jackson, MS 39205-0119 (601) 948-3101 Fax: 601-960-6902 Email: lvanslyke@brunini.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren O. Lawhorn BRUNINI, GRANTHAM, GROWER & HEWES, PLLC-Jackson P. O. Drawer 119 Pinnacle Bldg., Suite 100 190 East Capitol St. (39201) Jackson, MS 39205-0119 601/960-6850

Date Filed 03/10/2010
03/10/2010 03/10/2010 03/16/2010 03/26/2010 03/26/2010
04/23/2010 04/26/2010 04/28/2010 04/28/2010

Fax: 601/960-6902 Email: llawhorn@brunini.com ATTORNEY TO BE NOTICED
# Docket Text
1 COMPLAINT for Injunctive and Declaratory Judgment against Haley Barbour, Robert L. Robinson, Patricia Ainsworth, Edwin C. Legrand ( Filing fee $ 350 receipt number 34643002225), filed by Mary Troupe, Trasie Howard, Sheila Davis. (Attachments: # 1 Civil Cover Sheet)(cwl) (Entered: 03/10/2010)
2 MOTION to Certify Class by Mary Troupe, Trasie Howard, Sheila Davis (cwl) (Entered: 03/10/2010)
3 MEMORANDUM in Support re 2 MOTION to Certify Class filed by Mary Troupe, Trasie Howard, Sheila Davis (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(cwl) (Entered: 03/10/2010)
4 Summons Issued as to Defendants C/O Harold Pizzetta. (ND) (Entered: 03/16/2010)
5 MOTION for Extension of Time to File Answer by Haley Barbour, Robert L. Robinson, Patricia Ainsworth, Edwin C. Legrand (Shurden, Shawn) (Entered: 03/26/2010)
TEXT ONLY ORDER granting 5 Motion for Extension of Time to Answer re 1 Complaint. Haley Barbour answer due 4/26/2010; Robert L. Robinson answer due 4/26/2010; Patricia Ainsworth answer due 4/26/2010; Edwin C. Legrand answer due 4/26/2010. Signed by Magistrate Judge Linda R. Anderson on 3/26/2010. No further written order will issue. (WG) (Entered: 03/26/2010)
6 ANSWER to 1 Complaint, by Haley Barbour, Robert L. Robinson, Patricia Ainsworth, Edwin C. Legrand.(Woods, Mary) (Entered: 04/23/2010)
7 Rule 16(a) Initial Order Telephonic Case Management Conference set for 6/22/2010 11:00 AM before Magistrate Judge Linda R. Anderson (WG) (Entered: 04/26/2010)
8 MOTION to Intervene by Olivia Y. Plaintiffs (Nothenberg - PHV, Shirim) (Entered: 04/28/2010)
9 MOTION to Intervene Memorandum in Support of Motion to Intervene by Olivia Y. Plaintiffs (Attachments: # 1 Exhibit A -

04/29/2010
04/29/2010
05/07/2010 05/14/2010 05/17/2010
05/17/2010 05/26/2010 05/27/2010

Olivia Y. Amended Complaint, # 2 Exhibit B - Olivia Y. Settlement Agreement, # 3 Exhibit C - Olivia Y. Second Year Implementation Plan, # 4 Exhibit D - J.B. Complaint)(Nothenberg - PHV, Shirim) (Entered: 04/28/2010)
DOCKET ANNOTATION as to # 9 wrong event used, re MOTION to Intervene Memorandum in Support of Motion to Intervene by Olivia Y. Attorney is advised to refile the document using the event "Memorandum in Support of Motion" which is located under the category Responses and Replies. Motion 9termed. (cwl) (Entered: 04/29/2010)
10 MEMORANDUM in Support re 8 MOTION to Intervene filed by Olivia Y. Plaintiffs (Attachments: # 1 Exhibit A - Olivia Y. Amended Complaint, # 2Exhibit B - Olivia Y. Settlement Agreement and Reform Plan, # 3 Exhibit C - Second Year Implementation Plan, # 4 Exhibit D - J.B. Complaint)(Nothenberg - PHV, Shirim) (Entered: 04/29/2010)
11 NOTICE of Appearance by Robert B. McDuff on behalf of all plaintiffs (McDuff, Robert) (Entered: 05/07/2010)
12 Joint MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Intervene, 10 Memorandum in Support of Motion, by Mary Troupe, Trasie Howard, Sheila Davis (Juneja, Poonam) (Entered: 05/14/2010)
TEXT ONLY ORDER granting 12 Joint Motion for Extension of Time to File Response/Reply re 8 MOTION to Intervene. Responses due by 5/28/2010. Replies due by 6/11/2010. Signed by Magistrate Judge Linda R. Anderson on 5/17/2010. NO FURTHER WRITTEN ORDER WILL BE ISSUED. (WG) (Entered: 05/17/2010)
13 MOTION for Transfer by Mary Troupe, Trasie Howard, Sheila Davis (McDuff, Robert) (Entered: 05/17/2010)
14 MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Intervene by Haley Barbour, Robert L. Robinson, Patricia Ainsworth, Edwin C. Legrand (Pizzetta, Harold) (Entered: 05/26/2010)
TEXT-ONLY ORDER granting 14 Unopposed Motion for Extension of Time to File Response/Reply re 8 MOTION to Intervene. Replies due by 6/30/2010. Signed by Magistrate Judge Linda R. Anderson on 5/27/2010. No further written order will be issued. (WG) (Entered: 05/27/2010)

05/27/2010
05/27/2010 05/27/2010 05/27/2010 05/27/2010 05/28/2010
06/08/2010 06/09/2010

15 MOTION to Dismiss or, MOTION for Judgment on the Pleadings by Haley Barbour, Robert L. Robinson (Attachments: # 1 Exhibit Exhibit 1 - MYPAC admission and Freedom of Choice forms for L.S.; Exhibit 2 - MYPAC Freedom of Choice form for L.P.; Exhibit 3 - MYPAC information sheet)(Shurden, Shawn) (Entered: 05/27/2010)
16 MOTION for Leave to File Excess Pages by Haley Barbour, Robert L. Robinson (Shurden, Shawn) (Entered: 05/27/2010)
17 MEMORANDUM in Support re 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings filed by Haley Barbour, Robert L. Robinson (Shurden, Shawn) (Entered: 05/27/2010)
18 MEMORANDUM IN OPPOSITION re 8 MOTION to Intervene, 10 Memorandum in Support of Motion, 9 MOTION to Intervene Memorandum in Support of Motion to Intervene filed by Mary Troupe, Trasie Howard, Sheila Davis (Carroll, Vanessa) (Entered: 05/27/2010)
19 ORDER STAYING DISCOVERY pending a ruling on the Motion to Dismiss and cancelling telephonic case management conference. Signed by Magistrate Judge Linda R. Anderson on 5/27/2010. (WG) (Entered: 05/27/2010)
20 RESPONSE in Opposition re 13 MOTION Motion for Transfer filed by Haley Barbour, Robert L. Robinson, Patricia Ainsworth, Edwin C. Legrand (Attachments: # 1 Exhibit Complaint for Injunctive and Declaratory Relief in Civil Action No. 3:04cv251, # 2 Exhibit Complaint for Injunctive and Declaratory Relief in Civil Action No. 3:04cv251 (continued))(Shurden, Shawn) (Entered: 05/28/2010)
21 Unopposed MOTION for Extension of Time to File Response/Reply as to 17 Memorandum in Support of Motion, 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 06/08/2010)
TEXT-ONLY ORDER granting 21 Motion for Extension of Time to File Response/Reply re 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings. Responses due by 6/22/2010. Signed by Magistrate Judge Linda R. Anderson on 6/9/2010. No further written order will issue. (WG) (Entered: 06/09/2010)

06/14/2010 06/17/2010 06/17/2010 06/18/2010
06/22/2010 06/28/2010 06/28/2010
06/30/2010 07/06/2010
07/16/2010

22 MEMORANDUM in Opposition re 8 MOTION to Intervene filed by Patricia Ainsworth, Haley Barbour, Edwin C. Legrand, Robert L. Robinson (Woods, Mary) (Entered: 06/14/2010)
23 MOTION for Ira A. Burnim to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Certificate of Good Standing)(cwl) (Entered: 06/17/2010)
Pro Hac Vice fee paid by (Ira A. Burnim) $ 100, receipt number 34643003858 (cwl) (Entered: 06/17/2010)
TEXT-ONLY ORDER granting 23 Motion to Appear Pro Hac Vice of IRA A. BURNIM as co-counsel herein. Signed by Magistrate Judge Linda R. Anderson on 6/18/10. NO FURTHER WRITTEN ORDER WILL BE ISSUED. (WG) (Entered: 06/18/2010)
24 MEMORANDUM in Opposition re 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings filed by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 06/22/2010)
25 Unopposed MOTION for Extension of Time to File Response/Reply as to 24 Memorandum in Opposition to Motion by Haley Barbour, Robert L. Robinson (Shurden, Shawn) (Entered: 06/28/2010)
26 ORDER granting 25 unopposed Motion for Extension of Time to File Response/Reply re 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings. Replies due by 7/6/2010. Signed by Magistrate Judge Linda R. Anderson on 6/28/2010. (WG) (Entered: 06/28/2010)
27 REPLY to Response to Motion re 18 Memorandum in Opposition, 22 Memorandum in Opposition to Motion to Intervene filed by Olivia Y. Plaintiffs (Nothenberg - PHV, Shirim) (Entered: 06/30/2010)
28 Rebuttal re 24 Memorandum in Opposition to Motion to Dismiss filed by Haley Barbour, Robert L. Robinson (Attachments: # 1 Exhibit Compilation of the Social Security Laws, # 2 Exhibit MYPAC Initial Screening Sheet)(Shurden, Shawn) (Entered: 07/06/2010)
29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 07/16/2010)

07/16/2010 07/20/2010
07/23/2010 07/23/2010 07/27/2010 07/27/2010 07/28/2010
07/30/2010 07/30/2010 08/06/2010

30 MEMORANDUM in Support re 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference filed by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 07/16/2010)
31 NOTICE of Hearing on Motion 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings, 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference, 16 MOTION for Leave to File Excess Pages, 2 MOTION to Certify Class, 13 MOTION Motion for Transfer, 8 MOTION to Intervene : Motion Hearing set for 8/10/2010 09:00 AM in Courtroom 1 (Jackson) before District Judge Henry T. Wingate (TRS) (Entered: 07/20/2010)
32 MOTION for Shirim Nothenberg to Appear Pro Hac Vice by Olivia Y. Plaintiffs (Attachments: # 1 Exhibit Certificate of Good Standing)(Drinkwater, W.) (Entered: 07/23/2010)
33 MOTION for Jessica Polansky to Appear Pro Hac Vice by Olivia Y. Plaintiffs (Attachments: # 1 Exhibit Certificate of Good Standing)(Drinkwater, W.) (Entered: 07/23/2010)
Pro Hac Vice fee paid by (Shirim Nothenberg) $ 100, receipt number 34643004451 (cwl) (Entered: 07/27/2010)
Pro Hac Vice fee paid by (Jessica Polansky) $ 100, receipt number 34643004450 (cwl) (Entered: 07/27/2010)
TEXT-ONLY ORDER granting 32 Motion to Appear Pro Hac Vice of SHIRIM NOTHENBERG and granting 33 Motion to Appear Pro Hac Vice of JESSICA POLANSKY as co-counsel herein. Signed by Magistrate Judge Linda R. Anderson on 7/28/2010. NO FURTHER WRITTEN ORDER WILL BE ISSUED. (WG) (Entered: 07/28/2010)
34 NOTICE of Appearance by Wilson D. Minor on behalf of Haley Barbour, Robert L. Robinson (Minor, Wilson) (Entered: 07/30/2010)
35 RESPONSE in Opposition re 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference filed by Haley Barbour, Robert L. Robinson (Minor, Wilson) (Entered: 07/30/2010)
36 MOTION SUPPLEMENT TO MOTION FOR TRANSFER re 13 MOTION Motion for Transfer by Sheila Davis, Trasie

08/06/2010 08/10/2010
08/10/2010 08/17/2010

Howard, Mary Troupe (Attachments: # 1 Exhibit Olivia Y. Confidentiality Order)(Carroll, Vanessa) (Entered: 08/06/2010)
37 Rebuttal re 35 Response in Opposition to Motion to Lift Stay of Discovery and Proceed with Case Management Conference filed by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 08/06/2010)
Minute Entry for proceedings held before District Judge Henry T. Wingate. APPEARANCES: R. McDuff, S. Bedi, and V. Carroll; H. Pizzetta, S. Shurden, defense counsel; S. Nothenberg, J. Polansky, and W. Drinkwater, Intervenor plaintiffs. Motion Hearing held on 8/10/2010. The Court STAYED 8 MOTION to Intervene filed by Olivia Y. Plaintiffs, STAYED 36 MOTION SUPPLEMENT TO MOTION FOR TRANSFER re 13 MOTION Motion for Transfer filed by Sheila Davis, Mary Troupe, Trasie Howard, STAYED 16 MOTION for Leave to File Excess Pages filed by Haley Barbour, Robert L. Robinson, STAYED 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings filed by Haley Barbour, Robert L. Robinson, DENIED 13 MOTION Motion for Transfer filed by Sheila Davis, Mary Troupe, Trasie Howard, STAYED 2 MOTION to Certify Class filed by Sheila Davis, Mary Troupe, Trasie Howard, STAYED 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference filed by Sheila Davis, Mary Troupe, Trasie Howard. The Court will allow the parties to mediate the case. Parties were directed to report to the Court within seven days a mediator and the method of payment for the mediator; 30 days thereafter submit Status Reports until January 2011. (TRS) (Entered: 08/10/2010)
38 ORDER holding in abeyance 29 Motion; holding in abeyance 2 Motion to Certify Class; holding in abeyance 8 Motion to Intervene; denying 13 Motion; holding in abeyance 15 Motion to Dismiss; holding in abeyance 15 Motion for Judgment on the Pleadings; holding in abeyance 16 Motion for Leave to File Excess Pages. Parties have until January 31, 2011, to reach an agreement in this case. If an agreement is not reached by January 31, 2011, this court will conduct a hearing on the remaining motions and render a decision. Signed by District Judge Henry T. Wingate on 8/10/2010 (SM) (Entered: 08/10/2010)
39 ORDER denying 36 Motion to Supplement Motion to Transfer. Signed by District Judge Henry T. Wingate on 8/17/2010 (SM) (Entered: 08/17/2010)

03/31/2011 04/08/2011 04/08/2011 07/15/2011 08/03/2011
08/19/2011
08/24/2011 08/25/2011

40 NOTICE of Appearance by Jody E. Owens, II on behalf of All Plaintiffs (Owens, Jody) (Entered: 03/31/2011)
41 Amicus Curiae APPEARANCE entered by Anne Raish on behalf of U.S. Department Of Justice (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Raish, Anne) (Entered: 04/08/2011)
DOCKET ANNOTATION as to # 41 Local Rule 7 requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. For example Exhibit 1, Affidavit of John Doe. Attorney is advised to follow this rule in future filings. (cwl) (Entered: 04/08/2011)
42 NOTICE on Mediation by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 07/15/2011)
NOTICE of Hearing on Motion 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings, 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference, 2 MOTION to Certify Class, 8 MOTION to Intervene : Motion Hearing set for 8/19/2011 10:00 AM in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate (TRS) (Entered: 08/03/2011)
Minute Entry for proceedings held before District Judge Henry T. Wingate. APPEARANCES: V. Carroll, S. Bedi, and J. Owens, plaintiff's counsel; H. Pizetta, defense counsel and R. Robinson, defendant; W. Drinkwater and J. Polansky, counsel Intervenor plaintiffs; T. England and P. Barrett, counsel for Interested Party.Motion Hearing held on 8/19/2011. The Court reserved ruling 8 MOTION to Intervene filed by Olivia Y. Plaintiffs, 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings filed by Haley Barbour, Robert L. Robinson, 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference filed by Sheila Davis, Mary Troupe, Trasie Howard. The Court will contact the parties to announce its ruling. (Court Reporter Cherie Bond, 608-4186) (TRS) (Entered: 08/22/2011)
43 MEMORANDUM in Opposition re 8 MOTION to Intervene Defendants' Supplemental Memorandum in Opposition to Motion to Intervene filed by Patricia Ainsworth, Haley Barbour, Edwin C. Legrand, Robert L. Robinson (Pizzetta, Harold) (Entered: 08/24/2011)
44 MEMORANDUM in Opposition re 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings Supplemental

08/31/2011 09/01/2011 09/30/2011 09/30/2011 10/19/2011
02/27/2012 02/29/2012

Memorandum in Opposition to Defendants' Motion to Dismiss filed by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 08/25/2011)
45 REPLY to Response to Motion re 43 Memorandum in Opposition to Motion Supplemental Memorandum in Further Support of the Olivia Y. Plaintiffs' 8Motion to Intervene filed by Olivia Y. Plaintiffs (Attachments: # 1 Exhibit A - Proposed Order)(Nothenberg - PHV, Shirim) (Entered: 08/31/2011)
DOCKET ANNOTATION as to # 45 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 (Courts Administrative Procedures for Electronic Case Filing Sec.5.B.). (cwl) (Entered: 09/01/2011)
46 ORDER denying 8 Motion to Intervene; granting 16 Motion for Leave to File Excess Pages. Signed by District Judge Henry T. Wingate on 9/30/2011 (SM) (Entered: 09/30/2011)
47 FINDINGS OF FACT AND CONCLUSIONS OF LAW regarding Olivia Y. Plaintiffs' Motion to Intervene. Signed by District Judge Henry T. Wingate on 9/30/2011 (SM) (Entered: 09/30/2011)
Minute Entry for proceedings held before District Judge Henry T. Wingate. APPEARANCES: Ira Brunim, plaintiff's counsel; Harold Pizzetta, defense counsel; Anne Raish, counsel for DOJinterested party. Motion Hearing held on 10/19/2011. The Court heard oral argument on 15 MOTION to Dismiss orMOTION for Judgment on the Pleadings filed by Haley Barbour, Robert L. Robinson, 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference filed by Sheila Davis, Mary Troupe, Trasie Howard. The motions were taken under advisement. (TRS) (Entered: 10/19/2011)
48 NOTICE of Findings of the United States' Investigation of the State of Mississippi's Service System for Persons with Mental Illness and Developmental Disabilities by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A)(Carroll, Vanessa) (Entered: 02/27/2012)
DOCKET ANNOTATION as to # 48 : Local Rule 7 requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. For example Exhibit 1, Affidavit of John Doe. Attorney is advised to follow this rule in future filings. (cwl) (Entered: 02/29/2012)

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08/06/2013 08/08/2013 08/08/2013 08/09/2013

49 MOTION to Withdraw as Attorney by Sheila Davis, Trasie Howard, Mary Troupe (Bedi, Sheila) (Entered: 08/23/2012)
TEXT-ONLY ORDER granting 49 Motion to Withdraw as Attorney. Attorney Sheila A. Bedi terminated. Signed by Magistrate Judge Linda R. Anderson on 8/27/2012. No further written order will be issued. (WG) (Entered: 08/27/2012)
Remark: The outstanding motions in this case have been referred to Magistrate Judge Parker for a Report and Recommendation.(MM) (Entered: 07/26/2013)
50 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Michael T. Parker for all further proceedings to include conducting hearings and submitting to the District Judge assigned to this case proposed findings of fact and recommendations for disposition of this case. Magistrate Judge Linda R. Anderson no longer assigned to case. Signed by District Judge Henry T. Wingate on 7/29/2013 (cwl) (Entered: 07/29/2013)
Set Deadlines as to 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings filed by Haley Barbour and Robert L. Robinson . Motion Hearing set for 8/16/2013 10:00 AM in Courtroom 2, United States Courthouse, 701 N. Main Street, Hattiesburg, MS before Magistrate Judge Michael T. Parker. PLEASE NOTE: THIS HEARING WILL BE HELD IN HATTIESBURG, MS. (KPM) Modified on 8/6/2013 (KPM). (Entered: 08/06/2013)
DOCKET ANNOTATION as to Set Hearings event docketed 8/5/13: entry modified to reflect that the motion hearing set 8/16/13 will pertain only to the motion to dismiss 15 and not the motion to certify class 2 . (KPM) (Entered: 08/06/2013)
51 NOTICE of Appearance by Joseph Andrew Canter on behalf of All Plaintiffs (Canter, Joseph) (Entered: 08/08/2013)
52 MOTION to Withdraw as Attorney by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 08/08/2013)
TEXT ONLY ORDER granting 52 Motion to Withdraw as Attorney. Attorney Vanessa Judith Carroll terminated. NO FURTHER WRITTEN ORDER WILL ISSUE. Signed by Magistrate Judge Michael T. Parker on August 9, 2013 (KPM) (Entered: 08/09/2013)

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53 MOTION for Ona T. Wang to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A Certificate of Good Standing)(Owens, Jody) (Entered: 08/09/2013)
Pro Hac Vice fee paid for Ona T. Wang receipt number 05382481881 $ 100 (Owens, Jody) (Entered: 08/09/2013)
TEXT ONLY ORDER granting 53 Motion to Appear Pro Hac Vice. Ona T. Wang is hereby admitted pro hac vice upon registering for electronic filing. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on August 9, 2013 (KPM) (Entered: 08/09/2013)
54 NOTICE of Appearance by Ona Wang - PHV on behalf of Sheila Davis, Trasie Howard, Mary Troupe (Wang - PHV, Ona) (Entered: 08/13/2013)
TEXT ONLY ORDER: In accordance with the court's correspondence to the parties of August 13, 2013, and no party having expressed a desire for oral argument, the argument scheduled for August 16, 2013 is hereby cancelled. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on August 14, 2013 (KPM) (Entered: 08/14/2013)
55 REPORT AND RECOMMENDATIONS re 15 MOTION to Dismiss or MOTION for Judgment on the Pleadings filed by Haley Barbour, Robert L. Robinson, 29 MOTION Lift Stay of Discovery and Proceed with Case Management Conference filed by Sheila Davis, Mary Troupe, Trasie Howard. Objections to R&R due by 9/6/2013. Signed by Magistrate Judge Michael T. Parker on August 23, 2013 (KPM) (Entered: 08/23/2013)
56 OBJECTION to 55 Report and Recommendations by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Wang PHV, Ona) (Entered: 09/06/2013)
57 Amicus Curiae APPEARANCE entered by Ryan C. Wilson on behalf of U.S. Department Of Justice (Attachments: # 1 Exhibit)(Wilson, Ryan) (Entered: 09/06/2013)
DOCKET ANNOTATION as to # 56 : 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. (cwl) (Entered: 09/09/2013)

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10/25/2013

58 Response in Opposition re 56 OBJECTION to 55 Report and Recommendations by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Wang - PHV, Ona) filed by Phil Bryant, David J Dzielak (Attachments: # 1 Exhibit A- August 9, 2013 letter from Canter)(Pizzetta, Harold) (Entered: 09/20/2013)
59 MOTION to Strike 58 Response in Opposition, by Sheila Davis, Trasie Howard, Mary Troupe (Wang - PHV, Ona) (Entered: 09/27/2013)
60 MEMORANDUM in Support re 59 MOTION to Strike 58 Response in Opposition, filed by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1Exhibit A-Transcript of the August 19, 2011 Hearing on Defendants' Motion to Dismiss)(Wang - PHV, Ona) (Entered: 09/27/2013)
61 RESPONSE in Opposition re 59 MOTION to Strike 58 Response in Opposition, filed by Phil Bryant, David J Dzielak (Attachments: # 1 Exhibit Oral Argument Transcript)(Pizzetta, Harold) (Entered: 10/15/2013)
62 MOTION for Naima Garvin to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit Garvin Certificate of Good Standing)(Canter, Joseph) (Entered: 10/24/2013)
63 MOTION for Juvaria Khan to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit Khan Certificate of Good Standing)(Canter, Joseph) (Entered: 10/24/2013)
Pro Hac Vice fee paid for Naima Garvin receipt number 05382543671 $ 100 (Canter, Joseph) (Entered: 10/24/2013)
Pro Hac Vice fee paid for Juvaria Khan receipt number 05382543672 $ 100 (Canter, Joseph) (Entered: 10/24/2013)
TEXT ONLY ORDER granting 62 Motion to Appear Pro Hac Vice; granting 63 Motion to Appear Pro Hac Vice. Naima Garvin and Juvaria Khan are hereby admitted pro hac vice upon registering for electronic filing. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on October 25, 2013 (KPM) (Entered: 10/25/2013)
64 Rebuttal re 59 MOTION to Strike 58 Response in Opposition, filed by Sheila Davis, Trasie Howard, Mary Troupe

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04/09/2015 04/13/2015
04/24/2015 04/30/2015

(Attachments: # 1 Exhibit A - Psychosocial Assessment and Psychological Evaluation)(Wang - PHV, Ona) (Entered: 10/25/2013)
65 MOTION to Withdraw as Attorney by Sheila Davis, Trasie Howard, Mary Troupe (Canter, Joseph) (Entered: 08/25/2014)
TEXT ONLY ORDER granting 65 Motion to Withdraw as Attorney. Attorney Joseph Andrew Canter terminated. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on August 26, 2014 (KPM) (Entered: 08/26/2014)
66 MOTION for Jerri Katzerman to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A Certificate of Good Standing)(Owens, Jody) (Entered: 09/22/2014)
Pro Hac Vice fee paid for Jerri Katzerman receipt number 05382780846 $ 100 (Owens, Jody) (Entered: 09/22/2014)
TEXT ONLY ORDER granting 66 Motion to Appear Pro Hac Vice. Jerri Katzerman is hereby admitted pro hac vice upon registering for electronic filing. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on September 23, 2014 (KPM) (Entered: 09/23/2014)
67 MOTION to Substitute Attorney Elissa Johnson, MOTION to Withdraw as Attorney Jerri Katzerman by Sheila Davis, Trasie Howard, Mary Troupe (Johnson, Elissa) (Entered: 04/09/2015)
TEXT ONLY ORDER granting 67 Motion to Substitute Attorney and Motion to Withdraw as Attorney. Attorney Jerri Katzerman PHV terminated. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on April 13, 2015 (KPM) (Entered: 04/13/2015)
68 MOTION for Protective Order by David J Dzielak, Diana S Mikula (Attachments: # 1 Exhibit 1- Complaint to Compel Public Access to Records)(Pizzetta, Harold) (Entered: 04/24/2015)
69 RESPONSE to Motion re 68 MOTION for Protective Order filed by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A State and DOJ Letter of Agreement)(Owens, Jody) (Entered: 04/30/2015)

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06/24/2015 07/08/2015 07/08/2015 07/15/2015 08/18/2015 08/28/2015

70 AGREED PROTECTIVE ORDER granting 68 Motion for Protective Order. Signed by Magistrate Judge Michael T. Parker on May 6, 2015 (KPM) (Entered: 05/06/2015)
Minute Entry for proceedings held before Magistrate Judge Michael T. Parker: Telephonic Motion Hearing held on 5/6/2015 re 68 MOTION for Protective Order filed by David J Dzielak, Diana S Mikula. The court heard argument from the parties in support of the motion. The proposed protective order was entered (see #70). PARTICIPANTS: Jody Owens for plaintiffs; Harold Pizzetta for defendants. (KPM) (Entered: 05/07/2015)
71 MOTION to Intervene and to Vacate Protective Order by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Attachments: # 1 Exhibit A-Clarion Ledger's Complaint in Hinds County Chancery Court, # 2 Exhibit B- August 29, 2011 Letter from Jim Hood, # 3 Exhibit C-Affidavit of Joy Hogge, # 4 Exhibit D- Clarion Ledger Article, # 5 Exhibit E-Clarion Ledger's Public Records Request, # 6 Exhibit F-The Department's Response to Public Records Request)(Van Slyke, Leonard) (Entered: 06/24/2015)
72 MEMORANDUM in Support re 71 MOTION to Intervene and to Vacate Protective Order filed by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Van Slyke, Leonard) (Entered: 06/24/2015)
73 RESPONSE in Opposition re 71 MOTION to Intervene and to Vacate Protective Order filed by David J Dzielak, Diana S Mikula (Pizzetta, Harold) (Entered: 07/08/2015)
74 MEMORANDUM IN SUPPORT re 73 Response in Opposition to Motion filed by David J Dzielak, Diana S Mikula (Pizzetta, Harold) (Entered: 07/08/2015)
75 Rebuttal re 71 MOTION to Intervene and to Vacate Protective Order filed by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Van Slyke, Leonard) (Entered: 07/15/2015)
76 NOTICE of Appearance by Lauren O. Lawhorn on behalf of Gannett River States Publishing Corporation d/b/a The ClarionLedger (Lawhorn, Lauren) (Entered: 08/18/2015)
77 ORDER granting in part and denying in part 71 Motion to Intervene and to Vacate Protective Order. Signed by Magistrate Judge Michael T. Parker on August 28, 2015. (js) (Entered: 08/28/2015)

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10/01/2015 10/01/2015 10/07/2015 12/14/2015 12/17/2015 12/17/2015

78 MOTION to Withdraw as Attorney Elissa Johnson, MOTION to Substitute Attorney Brooke McCarthy by Sheila Davis, Trasie Howard, Mary Troupe (Johnson, Elissa) (Entered: 09/09/2015)
TEXT ONLY ORDER granting 78 Motion to Withdraw as Attorney; granting 78 Motion to Substitute Attorney. Added attorney Brooke L. McCarthy for Sheila Davis, Trasie Howard, and Mary Troupe. Attorney Elissa F. Johnson terminated. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on September 10, 2015 (KPM) (Entered: 09/10/2015)
Minute Entry for proceedings held before District Judge Henry T. Wingate. PARTICIPANTS: Brooke McCarthy, Vanessa Carroll, and Jody Owens for plaintiffs; Harold Pizzetta, for defendants; Mitzie Paige, Beth Kelly, and Deena Fox for DOJ; Leonard Van Slyke for Intervenor.Telephone Conference held on 10/1/2015. The parties advised the court the status of the case. The court will re-urge another Telephone Conference within 2-3 weeks. (TRS) (Entered: 10/01/2015)
79 NOTICE of Appearance by Deena Fox on behalf of U.S. Department Of Justice (Fox, Deena) (Entered: 10/01/2015)
80 NOTICE of Appearance by Mitzi Dease Paige on behalf of U.S. Department Of Justice (Paige, Mitzi) (Entered: 10/01/2015)
81 NOTICE of Appearance by Elizabeth Kelley - Federal Gov on behalf of U.S. Department Of Justice (Kelley - Federal Gov, Elizabeth) (Entered: 10/07/2015)
Set Hearings: Telephone Conference set for 12/17/2015 11:00 AM before District Judge Henry T. Wingate (TRS) (Entered: 12/14/2015)
82 NOTICE of Termination of Settlement Negotiations Between Plaintiffs and the United States and Defendants and Request for Rulings and a Scheduling Conference by Sheila Davis, Trasie Howard, Mary Troupe (Owens, Jody) (Entered: 12/17/2015)
Minute Entry for proceedings held before District Judge Henry T. Wingate. PARTICIPANTS: J. Owens, V. Carroll, B. McCarthy, H. Pizzetta, M. Paige, B. Kelly, and D. Fox.Telephone Conference held on 12/17/2015. The parties advised the court that settlement negotiations concluded and the case did not settle. An order is forthcoming on the following outstanding motions: 15 Motion to Dismiss or Judgment on the Pleadings, 29 Motion to Lift

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05/25/2016 05/25/2016 05/25/2016

Stay, 55 Report and Recommendation, and 58 Motion to Strike. The court will hold in abeyance 2 Motion to Certify Class. Court Reporter/Transcriber Gina Morris, Telephone Number : 601-6084187. (TRS) (Entered: 12/17/2015)
83 MOTION for Jenna Nicole Felz to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A Certificates of Good Standing)(Owens, Jody) (Entered: 05/18/2016)
Pro Hac Vice fee paid for Jenna Nicole Felz receipt number 05383191753 $ 100 (Owens, Jody) (Entered: 05/18/2016)
84 MOTION for Michelle Nicole Tanney to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A Certificate of Good Standing)(Owens, Jody) (Entered: 05/18/2016)
Pro Hac Vice fee paid for Michelle Nicole Tanney receipt number 0538-3191761 $ 100 (Owens, Jody) (Entered: 05/18/2016)
85 MOTION for Deborah Hilarie Renner to Appear Pro Hac Vice by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Exhibit A Certificates of Good Standing)(Owens, Jody) (Entered: 05/18/2016)
Pro Hac Vice fee paid for Deborah Hilarie Renner receipt number 0538-3191769 $ 100 (Owens, Jody) (Entered: 05/18/2016)
TEXT ONLY ORDER granting 83 Motion to Appear Pro Hac Vice; granting 84 Motion to Appear Pro Hac Vice; granting 85 Motion to Appear Pro Hac Vice. Jenna Nicole Felz, Michelle Nicole Tanney, and Deborah Hilarie Renner are hereby admitted pro hac vice upon registering for electronic filing. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on May 19, 2016 (KPM) (Entered: 05/19/2016)
86 NOTICE of Appearance by Vanessa Judith Carroll on behalf of All Plaintiffs (Carroll, Vanessa) (Entered: 05/25/2016)
87 NOTICE of Appearance by Lydia A. Wright on behalf of Sheila Davis, Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 05/25/2016)
88 MOTION Resolution of Pending Motions by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 05/25/2016)

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89 ORDER declining to address requested relief contained in letters. Signed by Magistrate Judge Michael T. Parker on June 9, 2016 (KPM) (Entered: 06/09/2016)
90 MOTION Transfer by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 07/12/2016)
91 Unopposed MOTION for Extension of Time to File Response/Reply as to 90 MOTION Transfer by David J Dzielak, Diana S Mikula (Pizzetta - State Gov, Harold) (Entered: 07/21/2016)
92 MOTION to Vacate Protective Order by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Attachments: # 1 Exhibit A - E-Mail Correspondence)(Van Slyke, Leonard) (Entered: 08/03/2016)
93 MEMORANDUM in Support re 92 MOTION to Vacate Protective Order filed by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Van Slyke, Leonard) (Entered: 08/03/2016)
94 RESPONSE in Opposition re 90 MOTION Transfer filed by Phil Bryant, David J Dzielak, Diana S Mikula (Attachments: # 1 Exhibit A - Olivia Y, et al. v. Barbour, et al. Docket, # 2 Exhibit B - Olivia Y. Complaint)(Pizzetta - State Gov, Harold) (Entered: 08/09/2016)
95 REPLY to Response to Motion re 90 MOTION Transfer , 94 Response in Opposition to Motion, filed by Sheila Davis, Trasie Howard, Mary Troupe (Carroll, Vanessa) (Entered: 08/16/2016)
96 RESPONSE in Support re 92 MOTION to Vacate Protective Order filed by Sheila Davis, Trasie Howard, Mary Troupe (McCarthy, Brooke) (Entered: 08/20/2016)
97 RESPONSE in Opposition re 92 MOTION to Vacate Protective Order filed by David J Dzielak, Diana S Mikula (Pizzetta - State Gov, Harold) (Entered: 08/22/2016)
98 MEMORANDUM IN SUPPORT re 97 Response in Opposition to Motion filed by David J Dzielak, Diana S Mikula (Pizzetta - State Gov, Harold) (Entered: 08/22/2016)

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99 Rebuttal re 92 MOTION to Vacate Protective Order filed by Gannett River States Publishing Corporation d/b/a The ClarionLedger (Van Slyke, Leonard) (Entered: 09/01/2016)
100 MOTION to Withdraw as Attorney by Brooke McCarthy by Sheila Davis, Trasie Howard, Mary Troupe (McCarthy, Brooke) (Entered: 09/21/2016)
TEXT ONLY ORDER granting 100 Motion to Withdraw as Attorney. Attorney Brooke L. McCarthy terminated. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on September 21, 2016 (KPM) (Entered: 09/21/2016)
Minute Entry for proceedings held before District Judge Henry T. Wingate. PARTICIPANTS: Jody Owens, Lydia Wright, Harold Pizzetta, Mitzi Paige, and Elizabeth Kelley.Telephone Conference held on 10/7/2016. The Court DENIED 90 Motion to Transfer, and FOUND AS MOOT 91 Unopposed Motion for Extension of Time to File Response/Reply as to 90 Motion to Transfer. The court will continue the Telephone Conference on October 13 at 8:15 A.M. (TRS) (Entered: 10/07/2016)
101 ORDER granting 88 Motion for Resolution of Defendants Motion to Dismiss etc Signed by District Judge Henry T. Wingate on 10/7/16 (ASJ) (Entered: 10/09/2016)
102 ORDER finding as moot 91 Motion for Extension of Time to File Response/Reply Signed by District Judge Henry T. Wingate on 10/7/16 (ASJ) (Entered: 10/09/2016)
103 Response in Opposition re 59 MOTION to Strike 58 Response in Opposition, by Sheila Davis, Trasie Howard, Mary Troupe (Wang - PHV, Ona) Defendants' Supplemental Response Requested by the Court filed by Phil Bryant, David J Dzielak (Pizzetta - State Gov, Harold) (Entered: 10/11/2016)
104 NOTICE of Appearance by James W Shelson on behalf of Haley Barbour, Robert L. Robinson (Shelson, James) (Entered: 10/11/2016)
105 NOTICE of Appearance by Reuben V. Anderson on behalf of Haley Barbour, Robert L. Robinson (Anderson, Reuben) (Entered: 10/11/2016)
106 NOTICE of Appearance by Robert Gregg Mayer on behalf of Haley Barbour, Robert L. Robinson (Mayer, Robert) (Entered: 10/11/2016)

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107 NOTICE of Appearance by William T. Siler, Jr on behalf of Haley Barbour, Robert L. Robinson (Siler, William) (Entered: 10/11/2016)
108 NOTICE of Appearance by Arthur Martin Edwards, IV on behalf of Haley Barbour, Robert L. Robinson (Edwards, Arthur) (Entered: 10/11/2016)
109 REPLY to Response to Motion re 59 MOTION to Strike 58 Response in Opposition, Plaintiffs' Supplemental Reply Requested by the Court filed by Sheila Davis, Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 10/11/2016)
Minute Entry for proceedings held before District Judge Henry T. Wingate. PARTICIPANTS: Lydia Wright, Jodie Owens, Vanessa Carroll, Mitzi Paige, Beth Kelly, Deena Fox, Harold Pizzetta, Mary Jo Woods, and James Shelson. Telephone Conference held on 10/13/2016. The court allowed argument on the Magistrate Judge 55 Report and Recommendation. The parties were instructed to submit to any new or additional citations and authority relative to the issues of the Report and Recommendation by 4:00 PM today. The court indicated that it will issue its ruling thereafter. Court Reporter/Transcriber Brenda Wolverton, Telephone Number : 601-608-4188. (TRS) (Entered: 10/13/2016)
110 ORDER denying 92 Motion to Vacate. Signed by Magistrate Judge Michael T. Parker on October 19, 2016. (js) (Entered: 10/19/2016)
111 NOTICE of Compliance with Rule 1.12 of the Mississippi Rules of Professional Conduct by Haley Barbour, Robert L. Robinson (Anderson, Reuben) (Entered: 10/24/2016)
112 MOTION to Consolidate Cases by Haley Barbour, Robert L. Robinson (Attachments: # 1 Exhibit A - Letter from Gupta to Hood (August 8, 2016), # 2Exhibit B - Press Release (August 11, 2016))(Mayer, Robert) (Entered: 10/24/2016)
113 MEMORANDUM in Support re 112 MOTION to Consolidate Cases filed by Haley Barbour, Robert L. Robinson (Mayer, Robert) (Entered: 10/24/2016)
114 MOTION for Review of Magistrate Judge Order re 110 Order on Motion to Vacate by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Van Slyke, Leonard) (Entered: 11/01/2016)

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115 ORDER denying 90 Motion Signed by District Judge Henry T. Wingate on 10/24/2016 (CGC) (Entered: 11/04/2016)
116 ORDER denying 59 Motion to Strike 58 Response in Opposition, Signed by District Judge Henry T. Wingate on 10/24/2016 (CGC) (Entered: 11/04/2016)
117 Mail Returned as Undeliverable as to 110 Order on Motion to Vacate. Mail sent to Attorney Naima Garvin. (RRL) (Entered: 11/07/2016)
118 RESPONSE in Opposition re 112 MOTION to Consolidate Cases filed by U.S. Department Of Justice (Attachments: # 1 Exhibit 1 - Troupe Complaint, # 2Exhibit 2 - U.S. Complaint, # 3 Exhibit 3 - Think Recovery Newsletter, # 4 Exhibit 4 FY2016-2017 State Plan)(Kelley-Federal Gov, Elizabeth) (Entered: 11/07/2016)
119 MEMORANDUM IN SUPPORT re 118 Response in Opposition to Motion, filed by U.S. Department Of Justice (Kelley-Federal Gov, Elizabeth) (Entered: 11/07/2016)
120 ORDER adopting Report and Recommendations re 55 Report and Recommendations; granting 15 Motion to Dismiss Signed by District Judge Henry T. Wingate on 11/7/2016 (CGC) (Entered: 11/07/2016)
121 ORDER granting 29 Motion to lift stay of discovery Signed by District Judge Henry T. Wingate on 11/7/2016 (CGC) (Entered: 11/07/2016)
122 Response in Opposition re 114 MOTION for Review of Magistrate Judge Order re 110 Order on Motion to Vacate by Gannett River States Publishing Corporation d/b/a The ClarionLedger (Van Slyke, Leonard) filed by David J Dzielak, Diana S Mikula (Pizzetta-State Gov, Harold) (Entered: 11/08/2016)
123 MOTION to Withdraw as Attorney by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Text of Proposed Order)(Felz - PHV, Jenna) (Entered: 11/10/2016)
TEXT ONLY ORDER granting 123 Motion to Withdraw as Attorney. Attorney Naima Garvin - PHV and Juvaria Khan - PHV terminated. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on November 10, 2016 (KPM) (Entered: 11/10/2016)

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124 Rule 16(a) Initial Order: Telephonic Case Management Conference set for 12/13/2016 10:30 AM before Magistrate Judge Michael T. Parker. Counsel shall dial 1.888.273.3658, code 1055457 to connect to the call. Confidential settlement memoranda are due on or before 12/7/16. (KPM) (Entered: 11/15/2016)
125 Rebuttal re 112 MOTION to Consolidate Cases filed by Haley Barbour, Robert L. Robinson (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)
126 Mail Returned as Undeliverable as to Order on Motion to Withdraw as Attorney. Mail sent to Juvaria Khan and Naima Garvin. (RRL) (Entered: 12/05/2016)
127 ORDER granting 112 Motion to Consolidate Cases. Civil Action No. 3:10-cv-153 and Civil Action No. 3:16-cv-622 consolidated. 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)
128 ORDER Regarding Telephonic Case Management Conference set for 12/13/2016 10:30 AM before Magistrate Judge Michael T. Parker. Signed by Magistrate Judge Michael T. Parker on December 7, 2016 (KPM) (Entered: 12/07/2016)
129 NOTICE of Withdrawal of Plaintiffs' Motion for Class Certification by Sheila Davis, Trasie Howard, Mary Troupe re 2 MOTION to Certify Class (Wright, Lydia) (Entered: 12/07/2016)
130 MOTION for Reconsideration re 127 Order on Motion to Consolidate Cases, by Sheila Davis, Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 12/09/2016)
131 RESPONSE in Support re 130 MOTION for Reconsideration re 127 Order on Motion to Consolidate Cases, filed by United States of America (Kelley-Federal Gov, Elizabeth) (Entered: 12/09/2016)
Minute Entry for proceedings held before Magistrate Judge Michael T. Parker: Telephonic Case Management Conference held on 12/13/2016. The parties addressed various case management issues. Entry of a case management order will be temporarily deferred pending disposition of certain preliminary matters. A

12/13/2016
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01/19/2017 01/19/2017
01/19/2017 01/20/2017

preliminary case management order will be entered. PARTICIPANTS: Lydia Wright for plaintiffs; Harold Pizetta, Jim Shelson and Mary Jo Woods for State of Mississippi; Elizabeth Kelly, Mitzi Dease-Paige, Deena Fox, Regan Rush and Adrienne Mallison for Department of Justice. (KPM) (Entered: 12/13/2016)
132 PRELIMINARY CASE MANAGEMENT ORDER: Disclosures due by 12/28/2016; Motions for Amended Pleadings due by 1/13/2017; supplementations to motion to reconsider due 1/20/17; responses to motion to reconsider due 1/27/17 or 14 days after supplementation is made. Signed by Magistrate Judge Michael T. Parker on December 13, 2016 (KPM) (Entered: 12/13/2016)
133 NOTICE of Service of Initial Disclosure by State of Mississippi (Shelson, James) (Entered: 12/28/2016)
134 MOTION to Dismiss Motion for Voluntary Dismissal of Claims of J.B., L.P., and L.M. by Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 01/13/2017)
135 First MOTION to Amend 1 Complaint by Sheila Davis. (Attachments: # 1 Exhibit Proposed Amended Complaint)(Wright, Lydia) (Entered: 01/13/2017)
DOCKET ANNOTATION as to #135: Incorrect event chosen. This document should have been docketed as MOTION TO AMEND. Court staff has revised docket entry to reflect correct event and linked to docket entry 1 Complaint. (RRL) (Entered: 01/17/2017)
136 MOTION to Withdraw as Attorney by Sheila Davis, Trasie Howard, Mary Troupe (Attachments: # 1 Text of Proposed Order)(Wang - PHV, Ona) (Entered: 01/19/2017)
DOCKET ANNOTATION as to #136: 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.). (RRL) (Entered: 01/19/2017)
137 MOTION to Amend/Correct 130 MOTION for Reconsideration re 127 Order on Motion to Consolidate Cases, by Sheila Davis, Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 01/19/2017)
TEXT ONLY ORDER granting 136 Motion to Withdraw as Attorney. Attorney Jenna Nicole Felz - PHV terminated. No

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further written order will issue. Signed by Magistrate Judge Michael T. Parker on January 20, 2017 (KPM) (Entered: 01/20/2017)
DOCKET ANNOTATION as to #137: Incorrect event chosen. This document should have been docketed as a Motion for Reconsideration. Court staff will terminate the motion and attorney is directed to refile using the correct event. (RRL) (Entered: 01/20/2017)
138 MOTION for Reconsideration re 127 Order on Motion to Consolidate Cases, by Sheila Davis, Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 01/20/2017)
139 NOTICE of Service of Initial Disclosure by Sheila Davis, Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 01/23/2017)
140 RESPONSE to Motion re 134 MOTION to Dismiss Motion for Voluntary Dismissal of Claims of J.B., L.P., and L.M. filed by State of Mississippi (Shelson, James) (Entered: 01/27/2017)
141 RESPONSE in Opposition re 135 MOTION to Amend/Correct filed by State of Mississippi (Attachments: # 1 Exhibit 1 - Order dated November 21, 2016)(Shelson, James) (Entered: 01/27/2017)
142 MEMORANDUM in Opposition re 135 MOTION to Amend/Correct filed by State of Mississippi (Shelson, James) (Entered: 01/27/2017)
Set/Reset Hearings: Hearing set for 2/10/2017 11:00 AM in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate. Parties should be prepared to argue all outstanding motions. (CGC) (Entered: 01/27/2017)
143 NOTICE of Appearance by Mathew Schutzer-Federal Gov on behalf of United States of America (Schutzer-Federal Gov, Mathew) (Entered: 01/27/2017)
144 RESPONSE in Support re 138 MOTION for Reconsideration re 127 Order on Motion to Consolidate Cases, filed by United States of America (Fox-Federal Gov, Deena) (Entered: 02/02/2017)
145 NOTICE of Appearance by Regan Rush-Federal Gov on behalf of United States of America (Rush-Federal Gov, Regan) (Entered: 02/03/2017)

02/03/2017
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146 RESPONSE in Opposition re 138 MOTION for Reconsideration re 127 Order on Motion to Consolidate Cases, filed by State of Mississippi (Attachments: # 1 Exhibit 1 - December 15, 2016 letter from SPLC to Mississippi Division of Medicaid)(Shelson, James) (Entered: 02/03/2017)
147 MEMORANDUM IN SUPPORT re 146 Response in Opposition to Motion, filed by State of Mississippi (Shelson, James) (Entered: 02/03/2017)
148 RESPONSE in Support re 135 MOTION to Amend/Correct for Leave to File Amended Complaint filed by Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 02/03/2017)
Set/Reset Hearings: Hearing reset for 12:00 Noon on 2/10/2017 in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate (changed from 11:00 a.m.) (CGC) (Entered: 02/08/2017)
149 RESPONSE in Support re 138 MOTION for Reconsideration re 127 Order on Motion to Consolidate Cases, filed by Sheila Davis, Trasie Howard, Mary Troupe (Wright, Lydia) (Entered: 02/08/2017)
Reset Hearings: Evidentiary Hearing set for 2/10/2017 01:00 PM in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate. This hearing's start time has been delayed by one (1) hour. (ab) (Entered: 02/10/2017)
150 OBJECTION to Report and Recommendations filed by State of Mississippi (In Camera Review of TAC Report) (Shelson, James) (Entered: 02/13/2017)
151 NOTICE of Appearance by Patrick Holkins-Federal Gov on behalf of United States of America (Holkins-Federal Gov, Patrick) (Entered: 02/14/2017)
152 NOTICE Advising Court of Apparent Violation of Protective Order by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Attachments: # 1 Exhibit A-Clarion Ledger Article)(Van Slyke, Leonard) (Entered: 02/22/2017)
153 Response in Opposition re 152 NOTICE Advising Court of Apparent Violation of Protective Order by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger (Attachments: # 1 Exhibit A-Clarion Ledger Article)(Van Slyke, Leonard) filed by State of Mississippi (Shelson, James) (Entered: 02/27/2017)

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05/04/2017

154 ORDER finding as moot 130 Motion for Reconsideration ; granting 138 Amended Motion for Reconsideration Re: 127 Order of Consolidation Signed by District Judge Henry T. Wingate on 3/19/2017 (CGC) (Entered: 03/19/2017)
155 ORDER granting 134 Motion to Voluntarily Dismiss certain plaintiffs Signed by District Judge Henry T. Wingate on 3/19/2017 (CGC) (Entered: 03/19/2017)
156 ORDER granting in part and denying in part 135 Motion to Amend/Correct Signed by District Judge Henry T. Wingate on 4/14/2017 (CGC) (Entered: 04/14/2017)
157 ORDER setting case management conference. Telephonic Case Management Conference set for 5/4/2017 3:00 PM before Magistrate Judge Michael T. Parker. Signed by Magistrate Judge Michael T. Parker on April 20, 2017 (KPM) (Entered: 04/20/2017)
158 AMENDED COMPLAINT against Phil Bryant, David J Dzielak, Diana S Mikula, Rick Barry, filed by Sheila Davis.(Wright, Lydia) (Entered: 04/24/2017)
159 NOTICE of Appearance by Graham P. Carner on behalf of Sheila Davis (Carner, Graham) (Entered: 05/02/2017)
Minute Entry for proceedings held before Magistrate Judge Michael T. Parker: Telephonic Case Management Conference held on 5/4/2017. A case management order will be entered. PARTICIPANTS: Graham Carner and Lydia Wright for plaintiff; James Shelson, Mary Jo Woods, Reuben Anderson and Robert Mayer for the defendants; and Leonard Van Slyke, Jr. for Intervenor. (KPM) (Entered: 05/04/2017)
160 CASE MANAGEMENT ORDER: The parties do not consent; Motions for Amended Pleadings due by 5/24/2017; Motions for Joinder of Parties due by 5/24/2017; Designate Experts Plaintiff Deadline due by 7/17/2017; Designate Experts for Defendant Deadline due by 8/17/2017; Discovery due by 9/1/2017; Motions due by 9/15/2017; Pretrial Conference set for 11/28 or 29/2017 before District Judge Henry T. Wingate; Bench Trial set for a two week term beginning 12/11/2017 before District Judge Henry T. Wingate; ETT: 7 days; settlement conference to be scheduled and completed by 6/30/17. Signed by Magistrate Judge Michael T. Parker on May 4, 2017 (KPM) (Entered: 05/04/2017)

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161 ANSWER to 158 Amended Complaint by State of Mississippi.(Shelson, James) (Entered: 05/08/2017)
Plaintiff's Ore Tenus MOTION to Substitute Attorney (KPM) (Entered: 05/24/2017)
162 AGREED ORDER granting Plaintiff's Ore Tenus Motion to Substitute Attorney. Attorney Robert B. McDuff; Jody E. Owens, II; Deborah Hilarie Renner - PHV; Michelle Nicole Tanney PHV; Ona Wang - PHV; Lydia A. Wright; Ira A. Burnim - PHV and Vanessa Judith Carroll terminated as to Sheila Davis. Signed by Magistrate Judge Michael T. Parker on May 24, 2017 (KPM) (Entered: 05/24/2017)
TEXT ONLY ORDER Setting Hearing on Motion 114 MOTION for Review of Magistrate Judge Order re 110 Order on Motion to Vacate Protective Order : Motion Hearing set for 5/31/2017 09:30 AM in Courtroom 6A (Jackson) Wingate before District Judge Henry T. Wingate NO FURTHER WRITEN ORDER TO FOLLOW. Signed by District Judge Henry T. Wingate on 5/26/2017 (CGC) Modified on 5/26/2017 (CGC). (Entered: 05/26/2017)
ORDER Cancelling Hearing on Motion. The parties having reached agreement on the motion 114 , the hearing which was set for 5/31/2017 at 9:30 a.m. is cancelled. Signed by District Judge Henry T. Wingate on 5/30/2017 (CGC) (Entered: 05/31/2017)
163 ORDER finding as moot 114 Motion to Review of Magistrate Judge Order Signed by District Judge Henry T. Wingate on 6/16/2017 (ab) (Entered: 06/16/2017)
164 Joint MOTION to Dismiss with Prejudice by State of Mississippi (Attachments: # 1 Exhibit A - Final Judgment)(Shelson, James) (Entered: 06/29/2017)
165 FINAL JUDGMENT OF DISMISSAL with Prejudice. Signed by District Judge Henry T. Wingate on 6/30/17. (TLC) (Entered: 06/30/2017)