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