Protective Order on Confidentiality

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Western Division

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ROSIE D., et al.,)

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Plaintiffs,)

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v.)Civil Action No.

)01-30199-MAP

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DEVAL PATRICK, et al.,)

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Defendants.)

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PLAINTIFFS’ RESPONSE TO DEFENDANTS’ PROPOSAL ON DISENGAGEMENT CRITERIA

I.Introduction and Overview

After reviewing the defendants’ Report on Implementation (Doc. 577) and the plaintiffs’ Eighteenth Status Report (Doc. 578), the Court set a schedule for establishing a disengagement process and criteria for its Judgment (June 25, 2012 ECF Entry). That process requires the parties to set forth their respective views on the status of compliance and the criteria for disengaging judicial supervision of the Judgment, to meet to discuss disputed issues, and to submit supplemental reports to the Court prior to a status conference on October 10, 2012.

Pursuant to that Order, the defendants filed their Proposal Regarding Disengagement Criteria (Doc. 580) (hereafter “Proposal”), which asserts that the Commonwealth is in full compliance with the Judgment, that the Court should terminate its oversight of the case now, and that there is no need to establish any disengagement criteria since the defendants have fulfilled all of their obligations under the Judgment and corrected all of the deficiencies under Medicaid Act. In the defendants’ view, the only action left for the Court is to resolve legal disputes concerning the interpretation of several provisions of the Judgment. The plaintiffs strongly disagree with this blanket assertion of compliance as well as the defendants’ failure to propose any disengagement criteria.

This Response briefly reviews the legal standard and process for demonstrating compliance with a systemic injunction, like this one. It then addresses the defendants’ characterization of the disputed areas of compliance, listing the key remaining tasks in each area. Finally, consistent with the Court’s directive, it sets forth a focused and limited set of disengagement criteria that the defendants must satisfy before the Court should relinquish its active supervision of this litigation.

II.Legal Standard and Process for Disengagement

The defendants claim that “there is a surprising paucity of reported cases charting the process by which a court should ‘disengage’ from oversight of a remedial order, irrespective of whether that order was entered as a consent decree, or, as here, a judgment after trial.” Proposal at 3. This conclusion is plainly erroneous. In fact, there are a myriad of cases, including several in this district, where courts have determined that the defendants are (or are not) in substantial compliance with the terms of a remedial order and, depending on its factual findings, disengaged (or refused to disengage) from its active oversight of the order. See, e.g., Brewster v. Dukakis, 3 F.3d 488, 491 (1st Cir. 1993) (termination of behavioral health decree may be subject to “multiple levels of disengagement” prior to full termination);Morgan v. Nucci, 831 F.2d 313, 326 (1st Cir. 1987) (declining to terminate school desegregation injunction absent a specific finding of unitary status in school district); Ricci v. Okin, 823 F.Supp. 984, 985-86 (D. Mass. 1993) (vacating behavioral health consent decrees and outstanding remedial orders where defendants demonstrated substantial compliance).

The proper means to vacate or modify a final judgment is to seek relief pursuant to Rule 60(b)(5) of the Federal Rules of Civil Procedure.[1] SeeFrew ex rel. Frew v. Hawkins, 540 U.S. 431, 441 (2004) (“Rule 60(b)(5) allows a party to move for relief . . . when a significant change in facts or law warrants” modification or termination of judgment (citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992))); Jeff D. v. Otter, 643 F.3d 278, 283 & n.4 (9th Cir. 2011) (motion to vacate behavioral health decrees evaluated under Rule 60(b)(5)). As a result, no matter how defendants style their disengagement motion, it must be evaluated under the rigorous standards of Rule 60(b)(5) which require proofby a preponderance of the evidence that the Judgment has been satisfied.[2] See Fed. R. Civ. P. 60(b)(5) (“the court may relieve a party or its legal representative from a final judgment . . . [if] the judgment has been satisfied”); Wyatt, By & Through Rawlins v. King, 803 F. Supp. 377, 385 (M.D. Ala. 1992) (“Although the defendants do not identify Rule 60(b) as the authority for their motions to modify [the remedial order], no other procedural rule would entitle them to the relief they seek”); Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114, 1119 (3d Cir. 1979) (“Such relief is extraordinary”) (cited with approval in Frew ex rel. Frew, 540 U.S. at 441).

As defendants concede, the moving party bears the evidentiary burden of proof to show that vacatur or modification is warranted. Proposal at 3, n.1 (“the moving party typically will bear the burden of proof”); League of United Latin American Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir. 2011) (Rule 60(b) places “[t]he burden … on the moving party to prove that the modification is warranted, regardless of whether the party seeks to lessen its own responsibilities under the decree, impose a new and more effective remedy, or vacate the order entirely”); Rufo, 502 U.S. at 383.

In order to prevail under Rule 60(b)(5), the defendants must prove that they are in substantial compliance with the terms of the Judgment and that the proposed disengagement does not otherwise defeat the purpose of the Court’s remedial order.[3] SeeJeff D., 643 F.3d at 284 (“Defendants have to establish that they had substantially complied with the requirements of the [final orders], and that any deviation from literal compliance did not defeat the essential purposes of the [orders]”); LaShawn A. ex rel. Moore v. Fenty, 701 F. Supp. 2d 84, 100 (D.D.C. 2010), aff'd sub nom.LaShawn A. ex rel. Moore v. Gray, 412 F. App'x 315 (D.C. Cir. 2011) (defendant must be “in enduring compliance with the mandates underlying” child welfare remedial order to obtain relief under Rule 60(b)(5)).[4] Moreover, where, as here, a remedial order is intended to impose permanent relief, the required compliance can be shown only when the reforms instituted are, in fact, long-lasting and will remain in place even absent active court monitoring. Proposal at 4 (acknowledging that “ongoing obligations” imposed under remedial plan “will continue indefinitely into the future”); Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 248 & 250-51 (1991) (requiring both that school board “complied in good faith with the desegregation decree since it was entered,” and demonstrated “that it was unlikely that [it] . . . would return to its former ways” in order to vacate desegregation decree); Sullivan v. Houston Independent School District, 475 F.2d 1071, 1078 (5th Cir. 1973) (denying Rule 60(b)(5) relief from permanent injunction where “[t]he School District failed to show that the continuation of the . . . injunction is unnecessary to insure that the rules [would] not be unconstitutionally applied . . . in the future”); Evans v. Fenty, 701 F. Supp. 2d 126, 176 (D.D.C. 2010) appeal dismissed, 10-5109, 2010 WL 3447241 (D.C. Cir. Aug. 27, 2010) (denying defendants’ Rule 60(b)(5) motion because “the Court does not have confidence that the agency's progress is durable and self-sustaining”).

In order to succeed on their motion, the defendants must show substantial, meaningful and enduring compliance with the terms of the Court’s remedial plan. SeeJohnson v. Sheldon, 2009 WL 3231226 at *7 (M.D.Fla. Sept. 30, 2009) (declining to vacate decree, despite “substantial compliance” with its terms because defendants had “not yet demonstrated full compliance with the community compliance exit criteria”); see alsoHorne v. Flores, 557 U.S. 433, 450 (2009) (absent a durable remedy, continued enforcement of injunctive relief is both necessary and proper).[5] The defendants cannot make the required showing on the record before the Court.

III.Outstanding Compliance Issues and Key Remaining Tasks

In their Eighteenth Status Report, the plaintiffs identified thirteen areas where the defendants have not demonstrated compliance with either the Medicaid Act or the specific provisions of the Judgment adopted to promote compliance with the Act. The defendants’ Proposal tracks this framework and addresses each of these areas in turn, often mischaracterizing the legal requirements for compliance and the evidence – or lack thereof – to prove compliance. This Response first addresses the defendants’ arguments on each area, identifying the provisions from the Judgment that relate to that area.[6] It also lists some key remaining tasks for each disputed compliance area under the Judgment.

A.Medically Necessary Services Required under the Medicaid Act

The Court’s central legal finding was that the defendants were not providing children with Serious Emotional Disturbance (SED) with all medically necessary services. Six-and-a-half years later, and three years after initiating the remedial services, the defendants still have not submitted any evidence that individual class members are receiving all medically necessary home-based services as required by the Medicaid Act.

The defendants characterize the compliance dispute as simply a “tracking” problem. Proposal at 4. They effectively concede that they have no information to prove, or even suggest, that individual class members are receiving the home-based services which they need, with the frequency, intensity, and duration necessary to meet those needs. Proposal at 5, n.2. They then claim that aggregate claims data on all class members satisfies their obligation under the Judgment and demonstrates their compliance with the Act. Id. at 5. They arguethat there is a legal dispute about the meaning of ¶ 46(d)(1)of the Judgment, and the Court should resolve the dispute in their favor and find them in compliance with the Medicaid Act. Id.

This characterization of the dispute is wrong as a matter of both law and fact. The Medicaid Act does not require aggregate services to aggregate populations measured by aggregate data. As the Court found, it provides an individual entitlement to all services recommended by a treating physician, or, in this case, by the child’s clinical team. Rosie D. v. Patrick, 410 F. Supp. 2d 25, 26 (D. Mass. 2006). The Judgment explicitly recognizes the individual mandate of the Act and requires proof that it is satisfied on an individual level. While evidence of substantial compliance with the Act need not demand evidence that every child is receiving all necessary services, the Judgment plainly requires the collection of individualized information about the services recommended for, and provided to, individual children.

Moreover, the evidence that is available demonstrates that the defendants are not complying with the Medicaid Act. The Monitor’s Community Service Review (CSR) repeatedly found in virtually every region that children were not receiving all of the home-based services that they need. Specifically, the recently released 2012 Statewide CSR Report found that 30% of youth were not provided with an acceptable level of home-based services.[7] Similarly, 43% of youth were not receiving interventions that matched their needs. See Statewide Report at 51 (Matching Interventions to Needs), 52 (Service Implementation), 53 (Availability and Access to Resources),attached as Exhibit 1.

B.Services Which Correct or Ameliorate Mental Health Conditions

The defendants apparently acknowledge their obligation to collect child outcome data to demonstrate whether home-based services have been effective in correcting or ameliorating the youth’s mental health conditions, and claim they do so using the Child and Adolescent Needs and Strengths (CANS) assessment tool. But as their Implementation Report concedes, they have yet to develop any method to measure and to report on youth outcomes. Implementation Report at 85. Their Proposal offers no additional information on where to find any outcomes, what the outcomes are, or when they might be available. Proposal at 7. Instead, it argues that the defendants have satisfied the “purposes of … the Judgment and the … Medicaid Act”by their undefined plan to use the CANS to measure outcomes sometime in the indefinite future. Id.

The Judgment and the Act demand more. While no precise measure of effectiveness has been established by the Court, some evidence that services are having some positive impact on youth is the bare minimum to expect from over ten years of litigation, five years of implementation, three years of service delivery, and millions of dollars of new services.

Moreover, the only available information on outcomes, the CSR assessment of youth progress and future prognosis, is discouraging. Specifically, over the past year, more than 37% of youth were found to be making limited to no progress. Statewide Report at 36. In the absence of any outcome data from the defendants, the Monitor’s data strongly suggests that the defendants’ provision of remedial services is not achieving the goals or complying with the requirements of the Medicaid Act.

C.Reasonably Prompt Services

The defendants claim that since their compliance with the recently-adopted 14-day access standard for ICC services has improved and now exceeds 80% of all referred youth, they are providing prompt ICC services. They make no such claim for other home-based services, and evidence from the CSR suggests that youth in certain regions experience long delays waiting for certain services, including ICC. See Statewide Report at 68-69. With regard to existing access data, the Report points out:

“[a]lthough agencies report that there are not many youth on official waitlists, it appears that the waitlist data may not be reliable enough from which to base assumptions about access to services on since there was such widespread reporting of waits for services.”

Id. at 68.

The Report concluded that ‘[m]any of the youth reviewed experienced significant delays between intake at an agency and their first receipt of services. Youth and families in some regions often waited months before their first team meeting was convened.” Id.

There is no dispute that wait times for ICC have improved over the past year, but significant and persistent access problems remain in several regions and within several CSA programs. As the defendants have long acknowledged, full compliance with the generous access standard is both a federal mandate and a commitment to the Court.[8] However, even according to the defendants’ own evidence, that plainly is not occurring.

D.Follow-up on Positive Screening (Judgment, ¶ 10)

The Proposal claims that the defendants have met all of their screening obligations under the Judgment, including tracking “the delivery of behavioral health services after a positive screening.” Proposal at 8-9. Yet no evidence of such tracking appears anywhere in the Implementation Report or supporting documents, with the narrow exception of a one-time pilot study in 2010 which demonstrates that only 25% of youth enrolled in the Managed Care Entities (MCEs) have received any follow-up services after a positive screen.[9] Thus, this factual claim of compliance is misleading at best.

Moreover, the legal claim that a 25% follow-up rate constitutes substantial compliance is highly suspect, given the wide discrepancy between youth served through the MCEs and those in the Primary Care Clinician (PCC) plan, which apparently has a 50% follow-up rate. In addition, the defendants offer no evidence that a 25% follow-up rate is reasonable, professionally acceptable, or clinically appropriate. While there may be several reasons why youth might not seek follow-up treatment, they hardly explain why only a 25% of youth who have a mental health issue are even assessed by a mental health professional.[10] Moreover, these justifications plainly do not demonstrate that the defendants have satisfied their screening obligations under the Judgment or are complying with the most basic component of the EPSDT mandate.

Key Remaining Tasks: Ensure the same screening follow-up rate for youth enrolled in each of the MCEs as for youth enrolled in the PCC Plan (50%).

E.CANS and the Assessment Process (Judgment,¶¶ 13-16)

The defendants concede that ¶ 15 of the Judgment obligates them to require all mental health providers, including outpatient providers, to use CANS as “an information integration and decision support tool.” Proposal at 11. The defendants also acknowledge their obligation to ensure that providers are complying with these requirements. Id. (“Like the plaintiffs, the defendants view the CANS compliance rates among certain types of providers as unacceptable.”).

The plaintiffs recognize that the defendants have put in place regulatory and contractual requirements that establish expectations for providers, and that the defendants have been exploring options for improving providers’ performance. The defendants contend that since “[t]hese initiatives are ongoing,” they have satisfied their obligations under the Judgment. Id. However, neither these regulatory and contractual requirements, nor other contemplated initiatives,are sufficient given the 56% CANS compliance rate for outpatient providers, especially since the vast number of class membersare served by outpatient therapists as clinical ‘hubs.’ This deficiency is particularly troubling for youth in acute settings or out-of-home placements, where the CANS is supposed to be a key strategy for determining the child’s need for remedial services and for referring the child to Intensive Care Coordination (ICC) or other home-based services.

Several years ago the defendants also proposed using the CANS as the primary method for assessing child outcomes. The Court, the Monitor, and the plaintiffs relied upon this commitment, and patiently waited for the implementation of a CANS outcome program. No such program has been implemented, and no evidence has been presented to demonstrate changes in functioning of individual children or class members generally. Proposal at 12. Given that improvements in youth functioning can be closely correlated to the effectiveness of remedial services, the Court should reject the defendants’ recent efforts to disavow the CANS as a way “to evaluate the impact and effectiveness of remedy services.” Id. Since the defendants currently have no other reliable, objective method for determining the effectiveness of remedial services, have failed to propose an alternative to the CANS, and are years way from being able to use the CANS to demonstrate that the remedy is improving the functioning of class members, compliance with all of the outcome requirements of the Judgment cannot be demonstrated. See Implementation Report at 85; see also Defendants’ Report on Intensive Care Coordination, Crisis Stabilization and Implementation at 56 (Doc. 562).