Protective Order on Confidentiality



UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Western Division

______________________________________________

)

ROSIE D., et al., )

)

Plaintiffs, )

)

v. ) Civil Action No.

) 01-30199-MAP

)

DEVAL PATRICK, et al., )

)

Defendants. )

)

______________________________________________ )

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] See Frew 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 proof by 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] See Jeff 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. See Johnson 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 also Horne 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 argue that 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 members are 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).

Key Remaining Tasks: Ensure that youth in DMH, DCF, and DYS residential and inpatient programs, those being discharged from acute settings (hospitals, CBATs, ICBATs), and those served by outpatient therapists have a CANS and are referred to ICC, when appropriate.

F. Intensive Care Coordination (Judgment, ¶¶ 19-30)

In their Eighteenth Status Report, the plaintiffs raised multiple issues of noncompliance with the central remedial service, ICC, and specifically the extent to which it is failing to perform key functions required by the Judgment, as well as its own medical necessity criteria and performance specifications. Although condensed somewhat in defendants’ rebuttal, these areas of noncompliance include: (1) care coordination; (2) team composition and function; (3) assessments; and (4) treatment planning and service delivery. Evidence of noncompliance in each area is discussed at length in the plaintiffs’ Status Report and supplemented below from the Statewide Report that was issued in late July 2012. The defendants, on the contrary, offer no evidence of their compliance with specific provisions of the Judgment concerning any of these four core components of ICC, either in the Implementation Report or Proposal.[11]

1. Care Coordination

The defendants assert that the Commonwealth is in compliance with EPSDT and the provisions of the Judgment governing the performance of ICC’s care coordination function. The absence of evidence supporting this assertion reinforces the importance of the Monitor’s CSR in assessing compliance with these provisions. The CSR represents the only comprehensive and independent statewide review of the delivery of remedial services for youth in ICC and In-Home Therapy (IHT). Significantly, the most recent CSR found numerous and persistent deficiencies in the provision of care coordination. See Statewide Report at 44 (Assessment and Understanding of Youth – only 55% acceptable), 52 (Care Coordination – 67% acceptable), 54 (Adopting and Adjusting – 66% acceptable), 55 (Transitions – 57% acceptable).

In their Proposal, the defendants renew their methodological concerns regarding the CSR, despite the lengthy briefings and evidence already presented to the Court regarding the reliability of the CSR, and its successful use in measuring the adequacy of service provision and clinical practice for purposes of compliance.[12] Proposal at 12-13. They mischaracterize the Court’s response to these arguments, and misstate the Court’s position regarding the relevance of the CSR’s objective scoring measures and its potential role in assessing compliance. In fact, the Court described the CSR as having “great potential benefit,” and its methodological concerns as “professional differences” not persuasive enough to stop the process put in place. Trans., January 31, 2011, 5:12-6:1.[13] The Court deferred a final decision on the use of the CSR, allowing the defendants an opportunity to renew their challenge to its reliability and validity at a later date. Id. at 17:10 - 18:5.[14] In no sense can it be said that the Court “expressly stated that CSR scores would not be used to measure compliance with the Judgment.” Proposal at 13.

Finally, the defendants rely upon prior claims that information generated by certain Wraparound Fidelity Assessment System (WFAS) instruments is more reliable than the CSR in evaluating wraparound practice, and, therefore, should be viewed as evidence of compliance with the Judgment.[15] Yet the original purpose and the subsequent implementation of these instruments call into question this characterization and support its rejection.

In early 2010 the defendants announced their intention to use the WFAS to inform ongoing implementation efforts, including providers’ need for technical assistance, supervision, training and coaching to ensure high fidelity to the wraparound model.  However, they chose to employ only two instruments from the WFAS package, the Wraparound Fidelity Index 4.0 (WFI-4)[16] and the Team Observation Measure (TOM).[17]

The National Wraparound Initiative is a well-reputed organization, and the WAFAS is an established set of instruments for examining fidelity to wraparound principles. Yet the defendants’ selective implementation of these instruments, and their changes to the methodology behind data collection, impact both the reliability and utility of the information collected. As a result, these two measures are quite limited in their ability to assess compliance with the Judgment and certainly are no substitute for the comprehensive, independent evaluation of ICC practice undertaken by the CSR. Moreover, while the defendants suggest that these tools are better suited to measuring fidelity to the wraparound practice model, they never claim that the WFI or the TOM offer a superior or even a comparable way to evaluate the adequacy of ICC service delivery, its adherence to performance specifications, or its execution of specific ICC functions required by the Judgment.

Key Remaining Tasks: Ensure that care coordinators perform all of the functions set forth in ¶¶ 20-22, 30 of the Judgment.

2. Team Composition and Coordination

The Proposal also does not respond to, or attempt to refute, the plaintiffs’ assertions of noncompliance with regard to the composition and functioning of care planning teams. Yet since the filing of the Eighteenth Status Report, the Statewide CSR Report further demonstrates the degree to which this requirement of the Judgment remains unfulfilled.

To determine whether a team is constituted and functioning in compliance with the remedial order, the CSR employs specific indicators on Team Formation and Team Functioning. These measures examine whether teams include all relevant members, whether they engage schools and other child-serving systems; the extent to which they meet, communicate and plan regularly together; and the degree to which they function in a coordinated and unified manner.

Both indicators demonstrate a marked decline since the first Statewide CSR Report. The second CSR Review found team formation was acceptable for only 64% of youth, and team functioning was acceptable for only 57%. Statewide Report at 42-43. As a result, teams were limited in their ability to understand youth and families; to coordinate, plan for and implement needed services; and to make timely adjustments to those services when needed. Id. at 43. For these reasons, and in order to come in to compliance with the Judgment and the defendants’ ICC program specifications, the CSR concludes that “[f]ocused work is needed statewide to help teams achieve common goals, unify efforts, communicate regularly, evaluate results, and work in alignment with system of care principles to benefit youth and families.” Id.

Key Remaining Tasks: Ensure that individual care planning teams are constituted and perform all of the functions required by ¶¶ 23-25, 30 of the Judgment.

3. Assessments

Compliance with provisions of the Judgment requiring a comprehensive home-based assessment for youth in ICC is foundational to the creation of an individualized plan of care that identifies medically necessary services and delivers interventions consist with youth’s strengths and needs. Two years of CSR findings have documented the inadequacy of mental health assessments and resulting deficiencies in teams’ understanding of youth needs and ability to develop responsive treatment plans. The defendants do not deny this long history of concerns or the impact on class members. Rather, they reframe the dispute as a legal one, surrounding the term “psychosocial assessment” and the various instruments which may qualify as such. Proposal at 15.

The Judgment requires that ICC providers conduct both a CANS and a comprehensive home-based assessment.[18] The defendants appear to have left to individual providers the decision as to what “other tools” should be used to solicit the kind of comprehensive diagnostic and clinical assessment information required to “organize and guide the development of an individualized plan of care.” Judgment, ¶ 24. Besides an expectation to update the CANS, the defendants also have not specified how teams satisfy their obligations to conduct “further assessments…so that the changing needs of the child can be identified.” Id. Instead, the defendants suggest that “most” youth receive an initial clinical assessment as determined by the individual CSA, often using an instrument developed as part of the Massachusetts Standardized Documentation Project (MSDP). Proposal at 15. This response suggests that it is at best unclear whether initial and updated assessments are consistently performed for all youth, whether the instruments employed satisfy the requirements of a psychosocial assessment, and, most importantly, whether those assessments are sufficiently comprehensive to fulfill the express goal of ¶ 24 – the organization and development of “an individualized plan of care that most effectively meets the child’s needs.”

CSR findings over the past two years consistently have found this is not the case. The 2012 Statewide Report reiterates the negative affects of noncompliance with these assessment obligations, including care plans having “…vague strategies that were not well informed by understanding of the youth and family or past interventions, were clinically limited in scope and intensity, and were not helping youth to make progress.” Statewide Report at 67. These findings are the result of two indicators: Assessment and Understanding of Youth and Assessment and Understanding of Families. These indicators measure the degree to which care coordinators and the team gather and synthesize relevant information and the degree to which they accurately understand the youth and family and can identify responsive services and supports. During 2011-2012, statewide system practice in these areas was acceptable for only 55% and 66% of youth and families, respectively. Id. at 44. Contrary to defendants’ belief that comprehensive psychosocial assessments and other tools are being conducted consistent with the goals and outcomes expected under ¶ 24, the CSR continued to find a disturbing number of youth – 42% of youth in 2012 – lacked a current mental health assessment or had assessments that were not of the quality needed to fully understand the youth and family. Id. at 67. Given the CSR findings, and the absence of any contrary evidence from the defendants, there is no basis for concluding that youth in ICC and IHT are being appropriately assessed. And without adequate assessments, treatment interventions are not likely to be targeted and effective.

Key Remaining Tasks: Ensure that youth receive initial and updated assessments, including a comprehensive home-based assessment, as required by ¶ 24 of the Judgment and the ICC Operations Manual.

4. Treatment Planning and Delivery

In response to deficiencies in treatment planning and service delivery identified in the first annual CSR (2010), the defendants’ directed additional coaching and training resources towards transition and discharge planning. Proposal at 16. However, no measurable outcomes or subsequent evaluation of these efforts are described. Nor do they assert that providers have since improved their delivery of these and other ICC functions. On the contrary, results from the Statewide Report confirm the persistence of these problems, documenting declines in system practice across the vast majority of treatment planning and service implementation measures.[19]

CSR indicators examining Service Implementation and Matching Interventions to Needs are directly correlated to treatment planning and the provision of appropriate services. As noted above, the Statewide Report indicates that service implementation was unacceptable for 30% of youth. The gravity of this finding is further compounded by determinations that 43% of youth were receiving services and interventions which did not match with their individual needs. For these reasons, the Statewide Report concludes that the system’s ability to plan for and deliver needed treatment interventions is weak and requires substantial improvement in order to come into compliance. Id. at vii.

The defendants acknowledge that care plans “…may not always state how frequently the family may need services.” Proposal at 16-17. However, they dismiss this issue, suggesting that many care plans implicitly address these concerns and that remedy service specifications “often dictate the frequency” of a service. Id. This suggestion only fuels concerns regarding the failure of ICC teams to provide services with the intensity and duration needed by youth and bolsters CSR findings that youth are not receiving medically necessary services. These findings confirm that a significant portion of class members (between 30-40%) still are not provided prompt, medically necessary services required to correct or ameliorate conditions faced by youth with SED. See Sections III(A)-(C).

The 2012 CSR concludes that overall system practice is unacceptable for 40% of all youth, a decline from last year. Statewide Report at 57-59. Disappointing youth progress and a significant, increasing number of cases with unacceptable system practice suggest that an effective and durable remedy has not yet been achieved.[20]

Key Remaining Tasks: Ensure that teams establish individualized treatment goals, describe all medically necessary services required to achieve these goals, including the frequency, intensity and duration required to correct or ameliorate identified condition(s), and develop transition and crisis plans, as required by ¶¶ 24-30 of the Judgment and the ICC Operations Manual.

G. Access to Remedial Services Coordinated by Outpatient Therapists (Judgment, ¶¶ 16, 33)

The defendants concede that their plan to rely upon outpatient therapists to provide care coordination and to approve home-based services for youth not otherwise involved in ICC or In-Home Therapy is wanting.[21] Proposal at 17-18. They acknowledge, as they must, that fully half of all youth do not receive a CANS, and that most of these children are served primarily by outpatient therapists.[22] Perhaps most disturbingly, the recent CSR confirms that youth served by outpatient therapists as a “hub” often are not referred for necessary home-based services. Statewide Report at 68. Thus, a cornerstone of the delivery system is not working, or at least not working as expected.

Key Remaining Tasks: Ensure that youth receiving outpatient therapy also receive medically necessary home-based services with the requisite frequency, intensity, and duration.

H. Interagency Roles and Responsibilities (Judgment, ¶¶ 7, 12, 30)

The defendants acknowledge, as they must, the significant patterns of consistently low referrals of children from certain state agencies responsible for identifying, referring and coordinating the treatment of agency-involved children with SED. As confirmed by the defendants’ most recent reports and the Statewide Report, referrals from the Division of Youth Services (DYS), the Department of Mental Health (DMH), and schools – all entities that serve large numbers of youth with SED with mental illness – remain inexplicably low.

The defendants offer anecdotes and unverified agency staff perceptions to explain the apparent lack of DMH and DYS-involved children who seek ICC remedial services. First, the defendants allege that DMH practices place the burden of referral on the MassHealth eligible family, and hypothesize that DMH practices result in “self referrals” to ICC, regardless of whether the youth and family in question are seeking DMH services for the first time, are existing DMH clients, or are transitioning from DMH residential facilities to the community. Second, the defendants suggest that DYS and families of youth with SED perceive that ICC is duplicative of DYS services and, thus, rarely request the core remedial service.

These preliminary and unsubstantiated explanations only exacerbate concerns that interagency responsibilities under the Judgment have been given short shrift. As a result, the lack of coordination between state agencies – something that the Judgment sought to eliminate – still persists, and access to treatment for agency-involved children with SED continues to be problematic.

The reported perceptions of DMH and DYS staff also raise concerns that the interagency protocols required by the Judgment, and developed jointly by the parties and the Monitor, are not sufficiently understood or followed. For example, the DMH protocol states:

For any DMH-enrolled youth being referred to any MassHealth services, DMH and its providers will seek written authorization to discuss the youth’s situation with relevant MassHealth providers and to provide records and participate in joint planning activities as necessary to assist in the transition to MassHealth services.

The protocol also provides that “the ICC care coordinator and DMH referral source will be expected to confer to discuss the reason for referral…as part of the comprehensive home-based assessment process.” The hands-off approach suggested by the DMH anecdotes runs contrary to the broad purposes and specific provisions of the DMH interagency protocol.

For DYS, the staff perception described is completely at odds with acceptable and expected practices as set forth in the protocol. As the DYS protocol states:

DYS often mandates treatment participation as a “condition” of release to the community. This is recorded on the youth’s “Grant of Conditional Liberty (GCL)”. DYS may require a youth to participate in wraparound services and other CBHI services or to continue substance abuse treatment begun in residential programs in the community, as one of the conditions for release to the community.

The protocol also sets forth the clear expectation that the DYS case worker and DYS clinician will support and assist the family in identifying the ICC provider, assisting with the referral and facilitating meetings with the provider.

The proposition that DYS case management and ICC are somehow duplicative is a troublesome indication that coordination between DYS and the CSAs is lacking. As acknowledged in the DYS protocol, the DYS Community Re-entry programs do not provide any direct behavioral treatment services. During pre-release, DYS case workers and clinicians must rely on referrals to ICC and community-based providers to access services. Taking into account the undisputed facts that many youth with SED enter the juvenile justice system without having received a comprehensive behavioral assessment or treatment services, and that DYS does not provide home-based mental health services, the lack of referrals and the failure to coordinate DYS and MassHealth services present a serious compliance issue.

The defendants’ attempt to dismiss these concerns and the Monitor’s observations regarding the low level of state agency and school staff participation on ICC teams[23] as a matter of family choice and veto. While there may be some circumstances that result in exclusion of particular staff from team membership, those circumstances are the exceptions not the rule, as the defendants suggest. Rather than propose steps to come into compliance with their interagency responsibilities under the Judgment, the defendants’ Proposal attempts to justify referral discrepancies identified by the CSR and the plaintiffs.

Key Remaining Tasks: Ensure that SED youth served by DMH and DYS are referred to home-based services.

I. Mobile Crisis Intervention (Judgment, ¶ 32(a))

Nearly half of the class does not receive community-based crisis evaluations and home-based crisis intervention services to which they are entitled under the Judgment, notwithstanding the defendants’ assertions that the Judgment does not require them to provide these services exclusively in the community. Proposal at 20 (emphasis added). While there should be some flexibility to provide the crisis services in a hospital in exceptional circumstances, based upon unique clinical situations, the reality is that almost half of all crisis evaluations and interventions occur in institutions. The provision of mobile crisis intervention in emergency rooms is now commonplace and is wholly unrelated to individual “exceptions.”

The defendants have failed to design a crisis system that requires mobile crisis services to be provided in home or community-based settings, whenever permitted by the child’s individual clinical profile. The defendants concede that it will “take some time to change” this practice and argue that “trend-lines on this subject continue to move in the right direction.” Id. at 20-21. The fact that it will “take some time” to achieve compliance with the Judgment or and that there is some “progress” does not mean that the defendants should be relieved from their obligations under the Judgment.

Key Remaining Tasks: Ensure that 85% of youth who receive MCI services are evaluated and served in community locations.

J. Crisis Stabilization Services (Judgment, ¶ 32(b))

The defendants continue to insist that CMS’ predictable rejection of their crisis stabilization services state plan amendment relieves them of all responsibility to provide this service, even though that submission was contrary to federal law as well as established CMS rules prohibiting the inclusion of room and board costs. Proposal at 21-22.

Nevertheless, with the help of the Monitor and her consultants, the parties reached agreement on an alternative method for satisfying the defendants’ obligation to provide crisis stabilization services. The alternative remedy includes: (1) expanding mobile crisis intervention services by increasing the capacity and duration of these programs to provide the in-home component of crisis stabilization; and (2) using CBAT programs to provide the out-of-home component of this service. To what extent this newly designed strategy, that just began less than 90 days ago, is effective at achieving the purposes and requirements of the Judgment is unknown. Remarkably, and erroneously, the defendants now assert that they have no further obligation under the Judgment and are free to implement and monitor this service in whatever way they chose.

Key Remaining Tasks: Ensure that 85% of youth who need crisis stabilization receive this service either in their own homes through extended (more than three days) of MCI services or in a CBAT residential setting for up to 7 days.

K. Service System Monitoring (Judgment, ¶ 34)

The defendants do not appear to challenge the plaintiffs’ assessment of their noncompliance with ¶ 34, since their Proposal does not address this issue at all. For the reasons stated in the Eighteenth Status Report, there is simply no “defined scheme for monitoring success.”

Key Remaining Tasks: The defendants establish a system for monitoring timely service access, appropriate service utilization, child outcomes, provider outcomes, and system outcomes.

L. Provider Performance Standards (Judgment, ¶ 38)

The defendants misapprehend, and as a result mischaracterize, the plaintiffs’ assertions of noncompliance in this area. The plaintiffs’ concern lies not with the program specifications for In-Home Therapy, In-Home Behavioral Therapy, Therapeutic Mentoring, Mobile Crisis, and Crisis Stabilization Services, but rather with the absence of detailed performance standards, which is a discrete component of the Judgment. [24] See ¶¶ 32-33, 38.

Although the defendants have developed performance specifications in accordance with ¶ 38(c)(vii), the Judgment clearly establishes a separate and distinct obligation to create “detailed performance standards” for contractors and providers of remedial services. ¶ 38(c)(viii) The defendants have satisfied this requirement for ICC, but not for any of the other remedial services. In fact, the defendants’ Proposal fails to acknowledge the existence of this obligation under the Judgment or the important compliance function it was intended to serve. Proposal at 23. In support of this position, the defendants rely exclusively on the following conclusory statement: “These specifications are incorporated into all provider contracts, and MCEs manage their providers to those specifications.” Id.

Due to the absence of performance standards, the defendants have failed to measure or report on the extent to which providers are delivering remedial services as required by the Judgment.[25] Nor have they offered any evidence of providers’ compliance with even those basic expectations set out in the performance specifications like staff qualifications, supervision, training and quality management. For these reasons, compliance with the Court’s remedial order cannot be achieved until detailed performance standards are established, and there is evidence that contract management systems and other mechanisms for provider monitoring are in place to ensure substantial compliance with those standards in the delivery of remedial services.[26]

Key Remaining Tasks: Develop performance standards for IHT, IBHT, TM, MCI, and CS similar to the ones adopted for ICC in the Operations Manual.

M. Data Collection (Judgment, ¶¶ 39- 46)

The defendants mischaracterize the compliance issues related to data collection and wrongly assert that any objections to the data collection requirements are untimely. Thus, the defendants offer no disengagement criteria with regard to data collection.

First, the plaintiffs’ concerns, include, but are not limited to, the failure to establish a new information technology application. As more fully described in their Eighteenth Status Report, the plaintiffs seek compliance with all the data collection requirements in the Judgment necessary to monitor and evaluate essential components of implementation, including service delivery, provider performance and child outcomes.[27]

The defendants now, for the first time, seem to argue that their unilateral abandonment of a new data collection system and their reliance on existing data (e.g., claims data, CANS data, MCE encounter data) cannot be challenged and is not a proper issue for disengagement. But there is no question that the Judgment’s data collection requirements are essential to implementation of the Judgment. These obligations cannot be modified unilaterally by the defendants, without notice to the parties and approval by the Court. Judgment, ¶ 50.

The defendants’ assertion that the plaintiffs have never raised the defendants’ failure to comply with their data collection obligations under ¶ 44 is simply wrong. On numerous occasions and in numerous status reports, the plaintiffs have stated serious concerns about the defendants’ confused approach to data collection. See Pls’ Seventh Status Report at 7 (Doc. 427); Pls’ Eighth Status Report at 8-9 (Doc. 449); Pls’ Ninth Status Report at 11 (Doc. 453); Pls’ Tenth Status Report at 9 (Doc. 457); Pls’ Thirteenth Status Report at 7 (Doc. 482); Pls’ Fourteenth Status Report at 7-11 (Doc. 496); Pls’ Fifteenth Status Report at 5 (Doc. 523); Pls’ Sixteenth Status Report at 9 (Doc. 533). In fact, for several years the plaintiffs have challenged the defendants’ failure to develop and implement a data collection system. The plaintiffs first protested this deficiency when the defendants missed the Judgment’s November 30, 2008 deadline for Project 4. Doc. 427 at 7. As the defendants deferred and delayed meeting their data collection obligations, the plaintiffs advised the Court: “[T]he primary emerging implementation issue is the defendant's data collection and evaluation process.” Doc. 496 at 7 (emphasis supplied).

When the defendants in 2010 made the claim that they met their obligations concerning data collection, evaluation and monitoring (including their obligations under ¶ 44), the plaintiffs strongly objected, stating, “This has plainly not occurred,” and elaborated as follows:

Since defendants cannot ignore the clear words of the Judgment and since the data that has been gathered woefully limited…these provisions [¶¶ 39-46] of the judgment present the next series of implementation tasks.

Id. at 8.

Key Remaining Tasks: There is a data collection system that collects reliable information on:

1. the timely provision of home-based services to all youth who need them (access);

2. the provision of home-based services with the frequency, intensity, and duration as required by youth’s needs and as set forth in their treatment plans (utilization);

3. youth outcomes of the provision of home-based services;

4. provider outcomes pursuant to performance standards and program specifications for ICC, IHT, IBHT, TM, MCI, and CS; and

5. system outcomes as required by the Judgment.

IV. Disengagement Criteria

The Court directed the defendants to propose disengagement criteria for assessing compliance with its Judgment. Their Proposal contains no compliance standards or disengagement criteria. In the absence of such benchmarks, the plaintiffs have developed focused and consolidated disengagement criteria to assess whether the requirements of federal law are satisfied, whether the deficiencies identified by the Court in its liability decision have been remedied, and whether the purpose and provisions of the Judgment have been achieved.

In order to minimize the number and scope of disengagement criteria, this Response proposes criteria for five obligations that encompass the defendants’ duties under the Medicaid Act, this Court’s decisions, and the Judgment. Each obligation addresses and relies upon several discrete provisions of the Medicaid Act and Judgment, as indicated below.

A. Access to Home-Based Services

Obligation: The defendants are required to promptly provide SED youth with all medically necessary, home-based services.

Legal authority: EPSDT, reasonable promptness, and Judgment, ¶¶ 13-38.

Disengagement criteria:

(1) individual class members who need home-based services are provided these services;

(2) class members are provided each medically necessary home-based service included in the Judgment, consistent with the time frames incorporated in the program specifications or access standard for that service; and

(3) youth in DMH, DCF, and DYS residential and inpatient programs, and those being discharged from acute settings (hospitals, CBAT, ICBAT) have a CANS and are referred to ICC, when appropriate.

B. Utilization of Home-Based Services

Obligation: The defendants are required to provide all SED children with home-based services with the frequency, intensity, and duration necessary to meet their mental health needs, as determined by their treatment professionals and as set forth in their individual treatment plans.

Legal authority: EPSDT, Judgment, ¶¶ 16, 23-30

Disengagement criteria:

(1) individual class members who receive home-based services are provided services with the frequency, intensity, and duration that they need, and as set forth in their Individual Care Plans or individual treatment plans.

C. Effectiveness of Home-Based Services

Obligation: The defendants are required to provide home-based services to correct or ameliorate a youth’s mental health condition and to generate data about the outcomes and effectiveness of the services.

Legal authority: EPSDT, Judgment, ¶¶ 38-46

Disengagement criteria:

(1) There is reliable evidence of clinical outcomes for individual class members who receive home-based services.

D. Provision of Home-Based Services

Obligation: The defendants are required to provide the home-based services described in the Judgment consistent with the youth’s assessed needs and the program specifications and performance standards for each service.

Legal authority; EPSDT, Judgment, ¶¶ 19-30, 32-34, 38, 46

Disengagement criteria:

(1) ICC: care coordinators and care teams accurately assess youth needs, appropriately identify and plan for needed services, and ensure the delivery of these services with the requisite frequency, intensity, and duration;

(2) MCI: 85% of youth who receive MCI services are evaluated in community settings and receive crisis intervention services in community locations;

(3) Crisis stabilization: 85% of youth who need crisis stabilization receive this service either in their own homes through extended (more than three days) of MCI services or up to 7 days of CBAT services; and

(4) Performance standards for IHT, IBHT, TM, MCI, and CS similar to the ones adopted for ICC in the Operations Manual.

E. Data and Monitoring of Home-Based Services

Obligation: The defendants are required to develop an effective monitoring system and to generate and use information from that system, in order to determine the appropriateness, timely utilization, and effectiveness of services on an individual, provider, and systemic level.

Legal authority: Judgment, ¶¶ 39-46

Disengagement criteria:

(1) There is an effective system of monitoring timely service access, appropriate service utilization, child outcomes, provider outcomes, and system outcomes;

(2) There is a data collection system that collects reliable information on:

a. the timely provision of home-based services to all youth who need them (access);

b. the provision of home-based services with the frequency, intensity, and duration as required by youth’s needs and as set forth in their treatment plans (utilization);

c. youth outcomes of the provision of home-based services;

d. provider outcomes pursuant to performance standards and program specifications for ICC, IHT, IBHT, TM, MCI, and CS; and

e. system outcomes as required by the Judgment.

V. Conclusion

The plaintiffs are prepared to discuss these compliance disputes and proposed disengagement criteria with the defendants and the Monitor at meetings scheduled in September, and to report further to the Court, as directed by the June 25, 2012 Order.

RESPECTFULLY SUBMITTED

BY THEIR ATTORNEYS,

/s/ Steven J. Schwartz

Steven J. Schwartz

Cathy E. Costanzo

Kathryn Rucker

Center for Public Representation

22 Green Street

Northampton, MA 01060

(413) 586-6024

BBO#448440

BBO#553813

BBO#644697

James C. Burling

James W. Prendergast

Christopher Zimmerman

Wilmer Cutler Pickering Hale and Dorr, LLP

60 State Street

Boston, MA 02109

(617) 526-6000

BBO#065960

BBO#553073

Frank Laski

Mental Health Legal Advisors Committee

26 School Street

8th Floor

Boston, MA 02108

(617) 338-2345

BBO#287560

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court's electronic filing system.

August 22, 2012 /s/ Steven J. Schwartz

-----------------------

[1] Rule 60 lists other possible bases for modifying or vacating a final judgment, but they are not applicable here.

[2] Where, as here, the remedial steps necessary for compliance with the Court’s Judgment were both foreseen and reasonably expected at the time the Judgment was entered, modification or vacation due to equitable considerations associated with changed circumstances is not applicable. See Rufo, 367 U.S. 385 (modification under Rule 60(b)(5) due to changed circumstances “should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree”); Jeff D., 643 F.3d at 283 & n.4 (motion for vacatur under Rule 60(b)(5) on basis of compliance with court order should be understood to claim that judgment has been satisfied, not that prospective application is no longer equitable).

[3] Even if the defendants are understood to have requested a modification rather than termination of the Judgment, the same heightened standard must be met. To obtain a modification under Rule 60(b), the defendants must likewise prove that they will continue to substantially comply with the Judgment’s requirements in the absence of court oversight. See Johnson v. Florida, 348 F.3d 1334, 1344 (11th Cir. 2003) (clarifying that the same standard applies to motions to modify and motions to vacate consent decrees); see also BUC International Corp. v. International Yacht Council Limited, 517 F.3d 1271, 1274-75, 1277-78 (11th Cir. 2008) (modifying final judgment only to the extent that it had been satisfied).

[4] See also Fortin v. Comm'r of Massachusetts Dept. of Pub. Welfare, 692 F.2d 790, 795 (1st Cir. 1982) (“[N]o particular percentage of compliance can be a safe-harbor figure, transferable from one context to another” in assessing compliance under Rule 60(b)); Frazar v. Ladd, 457 F.3d 432, 438 & 440 (5th Cir. 2006) (moving party must show more than “mere compliance with federal law” to modify or dismiss a decree designed to “enhance[e][] access to health care and improve[e][] the use of health care services by Texas EPSDT recipients”).

[5] Notwithstanding Defendants’ unfounded suggestion to the contrary, Proposal at 3, there is no requirement that Plaintiffs must make a showing of contempt, much less by clear and convincing evidence. Jeff D. at 285 & 287 (reversing where district court improperly required that “Plaintiffs to show by clear and convincing evidence that” the defendants had violated a final order “[r]ather than requiring the Defendants to demonstrate substantial compliance by a preponderance of the evidence”). Hawkins v. New Hampshire Department of Health and Human Services, 2010 WL 2039821 (D.N.H. May 19, 2010), aff’d 665 F.3d 25 (1st Cir. 2012), is not to the contrary. Hawkins stands only for the entirely unremarkable and inapposite proposition that when the parties agree to terminate a systemic injunction on a date certain unless the plaintiffs can demonstrate noncompliance prior to that date, and then the plaintiffs invoke this provision to challenge the automatic termination of the court’s jurisdiction, the plaintiffs must establish that the alleged violation of a decree constitutes contempt. 655 F.3d at 29. The plaintiffs here did not agree to an automatic termination date, did not agree to file a motion to extend that date, and have not moved for noncompliance.

[6] The Proposal argues that “the plaintiffs should be deemed to have conceded compliance” with respect to any aspects of the Judgment not challenged in the Eighteenth Status Report or herein. Proposal at 4. To avoid confusion, this Response lists the provisions of the Judgment that relate to each challenged area and for which the plaintiffs dispute the defendants’ assertion of compliance. Because several areas (e.g., Intensive Care Coordination) involve multiple obligations (e.g., role of care coordinators, responsibilities of treatment teams, contents of treatment plans), several areas understandably relate to multiple or overlapping provisions of the Judgment.

[7] This rating of ‘unacceptable,’ as used and defined in the CSR, indicates services or system practices that are not even minimally adequate, are not consistent with the most basic professional standards, and could not constitute compliance with any professional or legal requirement.

[8] While the Court has not established a standard for compliance with the ICC access standard, no reported case has ever accepted the notion that 80% adherence to federal law is sufficient or that there is no federal violation on behalf of the 20% of several thousand youth who are denied reasonably prompt ICC services.

[9] For some unexplained reason, the follow-up rate for youth enrolled in MassHealth’s other program, the PCC plan, is substantially higher and approaches 50%.

[10] Follow-up does not necessarily result in mental health treatment, but it should at least prompt a clinical assessment from a mental health professional.

[11] Rather, the defendants only list the results of the WFI and TOM as evidence of compliance with ¶ 46(e), Child and System Outcome Measures.

[12] In their initial Motion and Memorandum (Docs. 502, 503), the defendants opposed the CSR because: (1) it assessed actions of state officials who were not technically defendants in this case, although most operate under the control and direction of a defendant, the Secretary of the Executive Office of Health and Human Services (EOHHS); (2) it was unnecessary given the defendants' internal evaluation methods; and (3) it was expensive. See Mem. at 5-6, 9-10, 12. The defendants’ subsequent Renewed Motion for Clarification (Doc. 520) acknowledged that a case review is useful and relevant, but endorsed a different review instrument than the one selected by the Monitor (See Renewed Motion, ¶ 6) and raised four new methodological objections to the CSR. These arguments are refuted by plaintiffs’ briefs and supporting affidavits, demonstrating the utility of the CSR for measuring compliance and the numerous courts that have relied upon the CSR to determine whether to disengage from active supervision of systemic litigation. See, Plaintiffs’ Opposition to Motion for Clarification, Doc. 505; Supplemental Affidavit of Dr. Robert Friedman, Doc. 505-1; Affidavit of Dr. Ivor Groves, Doc. 505-2.

[13] In fact, the Attorney General acknowledged that the Commonwealth recognizes the importance and utility of qualitative information provided by the CSR, stating “By all means continue to evaluate the qualitative findings that these research teams are generating out in the field, and we have not changed our view on that. If we've ever conveyed to the contrary, I want to disabuse everyone of that notion now.” Trans., January 31, 2011, 11:22 – 12:1.

[14] In response to the defendants’ proposed relief the Court stated:

…[W]hat you're requesting me to do is to ‘issue explicit orders directing that, in light of the identified methodological flaws endemic to the CSR, data generated by the CSR process shall be used for illustrative purposes only and in no event shall the scores generated by the CSR process be used as a basis for a claim that the defendants have failed adequately to implement the remedy services set forth in the judgment. As I said before, I'm going to deny the motion without prejudice, but I want you to know that by saying without prejudice, I am saying that I am certainly not going to rely upon any scores generated by the CSR process without giving the defendants a prior opportunity to make the arguments again that you're making here….

Trans., January 31, 2011, 17:12 – 18:1.

[15] The WFAS was developed by the National Wraparound Initiative (see rtc.pdx.edu/nwi/).  

[16] The WFI index typically includes a set of four interviews designed to evaluate the service planning process, examining the functioning of individual ICC Teams and their adherence to the principles of wraparound care.  Although the index is designed to be completed by caregivers, youth, wraparound facilitators and team members, the defendants limited its scope, interviewing only parents/caregivers about their experience with the wraparound process. Even though the defendants now seek to offer the WFI reports as evidence of the quality of wraparound services, these parent surveys are more accurately described as the type of “member satisfaction measures” that the defendants sought to preclude from consideration in any assessment of noncompliance. Judgment ¶ 46(e) and (f).

[17] The defendants also chose to modify their implementation of the Team Observation Measure (TOM). TOM is designed to provide an external assessment of the wraparound process.  However, the defendants determined that ICC supervisors would use the TOM to observe and assess the adequacy of care planning within their own agencies.  The resulting self-assessment indicated across-the-board improvements in virtually every area from 2010 to 2011.  Yet a comparison of TOM and WFI data by the Wraparound Evaluation and Research Team noted a lack of correlation between the two measurement tools. Specifically, evaluators concluded that high TOM scores, as well as the observed rate of improvement by ICC supervisors, were not consistent with the WFI findings reported by families and caretakers.  They recommended using independent TOM raters for a sub-sample of selected teams to address possible bias among the current raters.

[18] This wraparound tool, often referred to as a strength, needs and culture discovery, is primarily a fact-gathering instrument and does not require administration by a licensed clinician or mental health professional.

[19] The Statewide Report’s executive summary encapsulates these concerns, noting that all treatment planning indicators declined since last year, that only 57% of youth had acceptable matching of needs and interventions, a significant decline since last year, and that the system’s practice of adapting and adjusting plans and services when needed was acceptable for only 66% of youth. Planning for life transitions remained an area of noncompliance, with only 59% of youth experiencing acceptable system practice. Of these, 16% experienced poor or adverse system practice, with transition needs unaddressed or no transition plan in place. Id. at vi-vii, 55.

[20] As might be expected given overall system practice performance, 37% of youth in the statewide sample made unfavorable progress, while the majority of youth with a favorable rating (39%) fell in the “fair” category, meaning their rate of progress could not be characterized as good or optimal. Statewide Report at 36.

[21] For youth who rely upon outpatient therapy for service coordination, they cannot receive In-Home Behavior Therapy, Therapeutic Mentoring, or Family Support Services unless the outpatient therapist refers them for these services.

[22] In the absence of a CANS, there is no way of knowing whether the youth are diagnosed as SED, whether their functional level and needs should result in a referral for home-based services, and whether the services they do receive are appropriate and effective, since the defendants have deemed the CANS to be the primary mechanism for evaluating youth outcomes.

[23] Of the 142 cases included in the Statewide Report, only 2% of referrals came from DMH and none from DYS. Similarly, of those youth in service, only 4% had any ongoing DMH involvement. DYS was involved with none of the sampled youth. Statewide Report at 10-11.

[24] That these concepts are different, and that the defendants recognize the difference is evident from the documents they created for Intensive Care Coordination. There are ICC program specifications and, quite separately, ICC performance standards in the ICC Operations Manual. Compare Implementation Report, Exs. 50-51.

[25] Rather, the defendants offer CMS communications and Medicaid State Plan documents as prima facie evidence of compliance with ¶ 38(c). See Implementation Report, Exs. 61-62.

[26] For instance, ¶ 38(c)(xii) references provider contracts that include performance standards or incentives, required reports, quality improvement projects, and utilization management reviews.

[27] The pervasive lack of information on the system, provider, and child levels was the primary subject of a August 2012 report from The Children’s Mental Health Campaign. See . The Children’s Campaign is a broad-based coalition of family, provider, professional, education, and advocacy organizations which have worked together for almost a decade to improve children’s mental health in Massachusetts.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download