University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Troupe v. Barbour CW-MS-0002
Docket / Court 3:10-cv-00153-HTW-LRA ( S.D. Miss. )
State/Territory Mississippi
Case Type(s) Child Welfare
Disability Rights-Pub. Accom.
Public Benefits / Government Services
Special Collection Olmstead Cases
Attorney Organization Bazelon Center
Children's Rights, Inc.
Southern Poverty Law Center
Case Summary
On March 30th, 2010, four Medicaid-eligible children of Mississippi with behavioral or emotional disorders filed a class action lawsuit in the United States District Court for the Southern District of Mississippi, under the Medicaid Act, 42 U.S.C. § 1396d et seq., the Americans with Disabilities ... read more >
On March 30th, 2010, four Medicaid-eligible children of Mississippi with behavioral or emotional disorders filed a class action lawsuit in the United States District Court for the Southern District of Mississippi, under the Medicaid Act, 42 U.S.C. § 1396d et seq., the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act against the the Mississippi Department of Mental Health (the Department) and the Mississippi Division of Medicaid.

The suit alleges that the state of Mississippi has failed to meet the needs of children and discriminates against children with mental health illnesses. The plaintiffs claim that they are unlawfully separated from their families and forced to cycle through institutions that fail to provide adequate services. They further allege that the state fails to provide federally mandated and medically necessary home and community-based mental health services. Represented by the Southern Poverty Law Center, the Bazelon Center for Mental Health Law, and private counsel, the plaintiffs requested a preliminary and permanent injunction.

Children's Rights Inc., counsel for plaintiffs in the child welfare case, Olivia Y. v. Barbour (in the Clearinghouse as CW-MS-0001) filed a motion for those plaintiffs to intervene in this case. Olivia Y., which pertains to foster care, was already settled, and in the implementation phase. On September 30th, 2011, the court denied intervention. Judge Henry Wingate held that the interests of Olivia Y.'s plaintiffs were not substantially impacted by the outcome of the instant case. 2011 WL 4590790 (S.D. Miss. Sept. 30, 2011).

On April 8, 2011, the Department of Justice (DOJ) entered an appearance as an amicus curiae. On December 22, 2011, the DOJ wrote a letter to the court reporting its investigative findings related to the suit. The letter supported the plaintiff's claims that the mental health services being offered by the state were grossly inadequate. It concluded the state was in violation of the ADA, the EPSDT (Early and Periodic Screening, Diagnostic, and Treatment) provisions of the Medicaid Act, and other federal statutes by not providing services to individuals with mental illness and/or developmental disabilities in the most integrated setting. The letter concluded that if Mississippi declined to enter into voluntary compliance negotiations, or if negotiations are unsuccessful, the United States may take action, including initiating a lawsuit. The plaintiffs submitted notice of these findings to the Court on February 27, 2012.

On August 23, 2013, Magistrate Judge Michael T. Parker issued a document entitled Report and Recommendations, in which he recommended that the Court grant defendant’s motion to dismiss the allegation that the defendants violated 42 U.S.C. § 1396a(a)(43) by failing to affirmatively provide EPSDT services to Plaintiffs, and grant the plaintiff’s motion to lift the stay on discovery so that the Court can schedule a case management conference. Magistrate Judge Parker concluded that the plaintiffs failed to state a claim in the first instance because 42 U.S.C. § 1396a(a)(43) requires only that defendants 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. As a result, the statute does not require that the defendants seek out parties who are eligible as the plaintiffs had alleged, but only requires that Defendants provide services after they are requested.

The plaintiffs objected to the magistrate judge's recommendations on September 6, 2013. The parties continued to respond to each other regarding this objection. Following the letter from the DOJ, the parties entered into negotiations. On August 29, 2014, the DOJ and the State reached an agreement addressing remedial measures the State would implement in response to the DOJ’s and the plaintiffs’ claims. As part of the agreement, Mississippi retained the Technical Assistance Collaborative (“TAC”) to provide assessments of permanent supportive housing for the mentally handicapped and assessments of Mississippi’s existing mental health services. TAC recorded its findings in the March 2015 TAC Report.

On April 24, 2015, the defendants filed a motion for a protective order in response to a complaint to compel public access to records by Gannett River States Publishing Corporation d/b/a The Clarion-Ledger. The complaint alleged that the TAC Report should be made public because it was paid for with taxpayer money, it was the understanding of the organizations and families who participated in the assessment for the TAC Report that the TAC Report would be public, and the “exemptions” and/or “privileges” asserted by the Department of Mental Health to keep the report private are inapplicable.

Magistrate Judge Parker approved the agreed protective order on May 6, 2015 based on the confidential nature of the settlement negotiations, of which the TAC report was a part. The order stated that statements made, and documents generated or exchanged by one of the parties to the negotiations or the TAC in the course of the settlement negotiations shall not be disclosed by any of the parties to the negotiations to anyone who is not a party, counsel, or expert participating in the confidential settlement negotiations. Additionally, the order provided that counsel for defendants shall provide the plaintiffs counsel with a copy of the March 2015 TAC Mississippi Children’s Behavioral Health Needs Assessment.

On June 24, 2015, in response to the agreed protective order, Gannett River States Publishing Corporation d/b/a The Clarion-Ledger filed a motion to intervene and to vacate the protective order. The Clarion Ledger claimed that it was well-established that they may intervene for the limited purpose of challenging the protective order and that the protective order should be vacated because the Department failed to show good cause as to why the TAC Report must be protected from public disclosure.

On August 28, 2015, Judge Parker issued an order granting in part and denying in part The Clarion Ledger’s motions. Judge Parker granted the motion to intervene because the motion was timely, The Clarion Ledger had an interest in the matter, the disposition of this action may impair The Clarion Ledger’s ability to protect its interest, and that the existing parties to the suit inadequately represented its interest. Judge Parker denied the motion to vacate because the TAC Report was part of a mediation or settlement conference, making then confidential and not subject to disclosure.

The parties continued negotiating, but reached an impasse. Pursuant to this, on December 17, 2015, Plaintiffs filed a Notice of Termination of Settlement Negotiations Between the plaintiffs and the DOJ and the defendants and requested a scheduling conference. The notice asked for decisions to be rendered on outstanding motions (Docket Nos. 15, 29, and 56), and requested a case management conference with respect to Count II, Plaintiffs’ ADA claim. That same day, Judge Parker stated that an order is forthcoming on those motions and that the Court will hold in abeyance the motion to certify class.

As of April 2, 2016, there has been no additional action in this case.

Ariana Fink - 12/12/2012
Frances Hollander - 04/02/2016


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Issues and Causes of Action
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Issues
Benefit Source
Medicaid
Defendant-type
Jurisdiction-wide
Disability
Integrated setting
Least restrictive environment
Mental impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Classification / placement
Deinstitutionalization/decarceration
Government Services (specify)
Individualized planning
Juveniles
Placement in mental health facilities
Public assistance grants
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Wait lists
Medical/Mental Health
Mental health care, general
Mental Disability
Mental Illness, Unspecified
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Title XIX of the Social Security (Medicaid) Act, 42 U.S.C §1396
Defendant(s) Mississippi Department of Mental Health
Mississippi Division of Medicaid
Plaintiff Description All children under the age of 21, statewide, who are Medicaid-eligible and who have a behavioral or emotional disorder and who need intensive home- or community-based mental health services.
Indexed Lawyer Organizations Bazelon Center
Children's Rights, Inc.
Southern Poverty Law Center
Class action status sought Yes
Class action status granted Pending
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Case Listing CW-MS-0001 : Olivia Y. v. Barbour (S.D. Miss.)
Additional Resources
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Case Studies Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

  Making Child Welfare Work: How the R.C. Lawsuit Forged New Partnerships to Protect Children and Sustain Families
By: Bazelon Center for Mental Health Law (Bazelon Center)
Citation: (1998)
[ Detail ]

Docket(s)
3:10−cv−00153 (S.D. Miss.) 12/17/2015
CW-MS-0002-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Injunctive and Declaratory Relief 03/10/2010
CW-MS-0002-0001.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Findings of Fact and Conclusions of Law Regarding Olivia Y. Plaintiffs' Motion to Intervene 09/30/2011 (2011 WL 4590790) (S.D. Miss.)
CW-MS-0002-0003.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Re: United States' Investigation of the State of Mississippi's Service System for Persons with Mental Illness and Developmental Disabilities 12/22/2011
CW-MS-0002-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Notice of Findings of the United States' Investigation of the State of Mississippi's Service System for Persons With Mental Illness and Developmental Disabilities 02/27/2012
CW-MS-0002-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Report and Recommendations 08/23/2013
CW-MS-0002-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Motion for Protective Order 04/24/2015
CW-MS-0002-0009.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Agreed Protective Order 05/06/2015 (S.D. Miss.)
CW-MS-0002-0006.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 08/28/2015 (2015 WL 5097209) (S.D. Miss.)
CW-MS-0002-0005.pdf | WESTLAW | Detail
Document Source: Bloomberg Law
Notice of Termination of Settlement and Negotiations Between Plaintiffs and the United States and Defendants and Request for Rulings and a Scheduling Conference 12/17/2015
CW-MS-0002-0008.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Parker, Michael T. (S.D. Miss.) [Magistrate]
CW-MS-0002-0005 | CW-MS-0002-0006 | CW-MS-0002-0007 | CW-MS-0002-9000
Wingate, Henry Travillion (S.D. Miss.)
CW-MS-0002-0003 | CW-MS-0002-9000
Monitors/Masters Perez, Thomas E. (District of Columbia)
CW-MS-0002-0002
Plaintiff's Lawyers Bedi, Sheila A. (Mississippi)
CW-MS-0002-0001 | CW-MS-0002-0004 | CW-MS-0002-9000
Burnim, Ira Abraham (District of Columbia)
CW-MS-0002-0008 | CW-MS-0002-9000
Canter, Joseph A. (Mississippi)
CW-MS-0002-9000
Carroll, Vanessa (Mississippi)
CW-MS-0002-0001 | CW-MS-0002-0004 | CW-MS-0002-9000
Drinkwater, W. Wayne Jr. (Mississippi)
CW-MS-0002-9000
Garvin, Naima (New York)
CW-MS-0002-9000
Johnson, Elissa F (Mississippi)
CW-MS-0002-9000
Katzerman, Jerri (Alabama)
CW-MS-0002-9000
Khan, Juviara (New York)
CW-MS-0002-9000
McCarthy, Brooke L. (Mississippi)
CW-MS-0002-9000
McDuff, Robert B. (Mississippi)
CW-MS-0002-0001 | CW-MS-0002-0004 | CW-MS-0002-9000
Nothenberg, Shirim (New York)
CW-MS-0002-9000
Owens, Jody E. II (Mississippi)
CW-MS-0002-0004 | CW-MS-0002-0006 | CW-MS-0002-0008 | CW-MS-0002-9000
Polansky, Jessica E. (New York)
CW-MS-0002-9000
Wang, Ona (New York)
CW-MS-0002-9000
Defendant's Lawyers Minor, Wilson D. (Mississippi)
CW-MS-0002-9000
Pizzetta, Harold Edward III (Mississippi)
CW-MS-0002-0006 | CW-MS-0002-0009 | CW-MS-0002-9000
Shurden, Shawn Stephen (Mississippi)
CW-MS-0002-9000
Woods, Mary Jo (Mississippi)
CW-MS-0002-9000
Other Lawyers Fox, Deena (District of Columbia)
CW-MS-0002-9000
Kelley, Elizabeth (District of Columbia)
CW-MS-0002-9000
Paige, Mitzi Dease (Mississippi)
CW-MS-0002-9000
Raish, Anne (District of Columbia)
CW-MS-0002-9000
Wilson, Ryan C (District of Columbia)
CW-MS-0002-9000

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