Case: Troupe v. Barbour

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 Mississippi Department of Mental Health (the Department) and the Mississippi Division of Medicaid.The Complaint alleged that the State of Mississippi failed to meet the needs of and discriminated against children with mental illnesses. Plaintiffs claimed that they were unlawfully separated from their families and forced to cycle through institutions that failed to provide adequate services. They further alleged that the state failed 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 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 U.S. 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 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 were unsuccessful, the United States might take action, including initiating a lawsuit. 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) required 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, Judge Parker found that the statute did not require defendants to seek out parties who were eligible as the plaintiffs had alleged, but only required that defendants provided services after they were requested. 2013 WL 12303126.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, 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 were 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 should not be disclosed by any of the parties to the negotiations to anyone who is not a party, counsel, or expert participating in the negotiations. Additionally, the order provided that counsel for defendants should provide 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. 2015 WL 5097209. 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 could impair The Clarion Ledger’s ability to protect its interest, and 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 it confidential and not subject to disclosure.The parties continued negotiating, but reached an impasse. Accordingly, 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, which included defendant's motion to dismiss, plaintiff's motion for class certification, and plaintiff's motion to lift the stay of discovery (Docket Nos. 15, 29, and 56). It also requested a case management conference with respect to Count II, plaintiffs’ ADA claim. The same day, Judge Parker stated that an order was forthcoming on those motions and that the Court would hold in abeyance the motion for class certification.There was little movement in the case in the subsequent months. On May 25, 2016, plaintiffs filed a motion for resolution of the pending motions. On July 12, they moved the court to transfer the case to Judge Tom Lee, who was adjudicating a similar case, Olivia Y. v. Barbour. On August 3, the Clarion Ledger, a local newspaper, filed a motion to vacate the protective order preventing it from accessing the TAC Report, arguing that since settlement negotiations had ceased, the public interest in accessing the report now outweighed the parties' interest in resolving the matter. On October 9, Judge Wingate granted plaintiffs' motion for resolution of the pending motions. On October 19, Judge Parker denied the Clarion Ledger's motion to vacate the protective order on the TAC Report. 2016 WL 6106479. On October 24, 2016, District Judge Henry T. Wingate denied plaintiffs' motion to transfer the case, finding that the Olivia Y. case was not active and ongoing, so transfer was inappropriate. On November 7, 2016, more than three years after Magistrate Judge Parker filed his Report and Recommendations regarding defendants' Motion to Dismiss Count One of the Complaint - which alleged that the defendants violated 42 U.S.C. § 1396a(a)(43) by failing to affirmatively provide EPSDT services to Plaintiffs - Judge Wingate adopted the findings in the Report and granted the Motion to Dismiss Count One. Judge Wingate agreed with Judge Parker that plaintiffs had an affirmative duty to request EPSDT services. Judge Wingate also lifted the stay on discovery on that day, allowing the discovery process to move forward. On December 6, 2016, the court consolidated this case with United States v. Mississippi. 2016 WL 7650605. In that case, the U.S. alleged that Mississippi discriminated against adults with mental illness in a way that resulted in unnecessary institutionalization.On December 7, 2016, plaintiffs withdrew their motion for class certification, which had never been decided by the court. On January 13, 2017, three of the four plaintiffs in the case, J.B., L.P., AND L.M., moved to voluntarily dismiss their claims since they had all turned 21 and aged out of the State's mental health system for children. The court granted this motion on March 19, 2017, leaving only one plaintiff in the case.Also on January 13, 2017, the remaining plaintiff, L.S., moved to amend the complaint due to the decision to no longer seek class certification and other changes that had occurred over the six years since litigation commenced. On April 14, the court granted in part the plaintiff's motion to amend the complaint. However, since the EPSDT claim from the original Complaint had been dismissed, the court precluded the plaintiff from resurrecting this claim. On April 24, 2017, L.S. filed an Amended Complaint. The Amended Complaint alleged that the State had failed to provide L.S., who had both developmental disabilities and mental illness, with services in the most integrated setting appropriate and had unnecessarily institutionalized him. Plaintiff confined his claims to the ADA and Section 504. He sought declaratory and injunctive relief and attorneys' fees and costs. Over the next two months, the parties conferred and were able to reach a settlement agreement. On June 29, 2017, the parties jointly moved to dismiss the Amended Complaint and filed the Settlement Agreement with the court. The Agreement provided as follows: 1) Within 21 days of the execution of the agreement, the State would remove L.S. from East Mississippi State Hospital to an intermediate care home, where he would receive a variety of services. He would also be enrolled in the ID/DD Waiver Program, and would receive person-centered planning to determine and coordinate his services according to his needs. Defendants agreed to pay $7,500 in attorney's fees to L.S.'s attorney. Finally, the Agreement gave the court jurisdiction to enforce its terms until L.S.'s enrollment in the Waiver Program or nine months until he transitioned into the intermediate care facility, whichever came earlier.On June 30, 2017, the court issued a Final Judgment dismissing the case with prejudice and incorporating into the Judgment the terms of the Settlement Agreement. As of June 2018, there has been no further activity, and the case now appears closed.