UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Western Division
)
ROSIE D., et al., )
)
Plaintiffs )
)
v. ) Civil Action No.
) 01-30199-MAP
)
MITT ROMNEY, et al., )
)
Defendants )
)
PLAINTIFFS’ REPLY FINDINGS OF FACT AND CONCLUSIONS OF LAW
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Table of Contents
Page
PLAINTIFFS’ REPLY FINDINGS OF FACT AND CONCLUSIONS OF LAW i
I. THE DEFENDANTS PRESENTED NO EVIDENCE ABOUT SERVICES ACTUALLY DELIVERED TO SED CHILDREN, IN CONTRAST TO THE PLAINTIFFS’ OVERWHELMING EVIDENCE THAT THESE CHILDREN DID NOT RECEIVE INTENSIVE HOME-BASED SERVICES 1
A. The Defendants’ Proposed Findings Regarding Services “Provided” Rely Exclusively On Descriptions In Contracts And Manuals. 1
B. Instead Of Demonstrating Delivery Of Medically Necessary Services, The Defendants Rely On The Absence Of Denial Of Service Requests . 3
C. In Contrast, The Plaintiffs Present Multiple Forms Of Direct Evidence That SED Children Are Not Receiving Intensive Home-Based Services 3
II. THE DEFENDANTS CANNOT AVOID THEIR OBLIGATION TO PROVIDE INTENSIVE HOME-BASED SERVICES BY MISLEADINGLY LABELING THEM AS A “SYSTEM OF CARE.” 5
A. The Defendants’ Findings Mischaracterize the Relief Sought by the Plaintiffs as a System for Delivering Services, Rather Than Services Themselves. 5
B. A System Is the Organization, Funding, and Framework Under Which Services Are Delivered, Not the Services Themselves. 6
C. Intensive Home-Based Services Are a Single Treatment, Not a Method for Delivering that Treatment. 7
D. Intensive Home-Based Services Are an Effective Treatment, Without Regard to the System for Delivering those Services. 8
E. Intensive Home-Based Services Are Covered Medicaid Services, While Systems of Care Are Usually Funded With Non-Medicaid Resources. 9
III. DEFENDANTS’ HYPERTECHNICAL CRITICISM OF THE PLAINTIFFS’ SURVEY FAILS TO UNDERMINE ITS FINDING OF WIDESPREAD, UNMET NEED FOR INTENSIVE HOME-BASED SERVICES. 10
A. The Sample Supports Valid Conclusions About the Unmet Need for Intensive Home-Based Services In The Larger Population. 10
B. The Clinical Review Was Unbiased. 11
C. The Defendants’ Own Recognition Of The Need For Intensive Home-Based Services Confirm The Findings of the Clinical Review. 12
IV. THE DEFENDANTS’ PROPOSED FINDINGS INCLUDE EVIDENCE OR ALLEGATIONS BEYOND THE SEPTEMBER 2004 COMPLIANCE DATE. 13
A. Defendants Seek to Disguise Their Failure to Provide Services Before the Relevant September 2004 Compliance Date by Proposing Findings About Belated Initiatives. 13
B. As of September 2004, the Defendants Were Not Providing the Services Identified in Their Proposed Findings to the Plaintiffs and Children in the Clinical Review. 14
V. THE DEFENDANTS DO NOT EFFECTIVELY INFORM FAMILIES, ADEQUATELY SCREEN CHILDREN, OR PROVIDE AND ARRANGE INTENSIVE HOME-BASED SERVICES FOR CHILDREN THAT NEED THEM 15
A. MassHealth Informs Families and Providers Only About Physical Health Services under SPSDT, But Not About Mental Health and Intensive Home-Based Services. 15
B. MassHealth Does Not Use the Information From Screening, and Particularly Interperiodic Screening by Mental Health Professionals, to Arrange Intensive Home-Based Services. 17
C. MassHealth Does Not Ensure That Children Who Need Intensive Home-Based Services Actually Receive Them. 17
CONCLUSIONS OF LAW 18
A. Under EPSDT, MassHealth Is Required to Reach Out and Identify Children With Mental Health Conditions, and Then Effectively Inform Recipients and Providers of Available Services. 19
B. Under EPSDT, MassHealth Is Required to Use Information From Periodic and Interperiodic Screens to Provide or Arrange Recommended Treatment. 20
C. Under EPSDT, MassHealth Is Required to Ensure That Children Receive Needed Treatment. 21
D. Under EPSDT, MassHealth Is Required to Provide Intensive Home-based Services. 22
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Glossary of Citation and Abbreviation Conventions
Citation Conventions
Citations referencing original findings of fact and conclusions of law use the following abbreviations:
“PF” = Plaintiffs’ findings of fact
“PC” = Plaintiffs’ conclusions of law
“DF” = Defendant’s findings of fact
“DC” = Defendants’ conclusions of law
“PRF” = Plaintiffs’ reply findings of fact
“PRC” = Plaintiffs’ reply conclusions of law
Citations referencing trial testimony are formatted by using the last name of the witness followed by “TT” (i.e., trial transcript) and the page and line number(s) from the referenced transcript. References to designated deposition testimony are, likewise, formatted by using the last name of the deponent followed by “DT” (i.e., deposition transcript) and the page and line number(s) from the referenced transcript. Finally, references to trial exhibits are formatted by using “PX” (i.e., plaintiffs’ exhibit) or “DX” (i.e., defendants’ exhibit) followed by the Bates number (i.e. DMA123) or internal page number cited within that document.
Abbreviation Conventions
1. People mentioned in the Findings of Fact are referred to by their last name only. Below is a list of all the names mentioned in the brief, followed by the individual’s full name and description.
Alintuck Lisa Alintuck, guardian of named plaintiff Anton
Bannish Jayne Bannish, MBHP Intensive Clinical Manager
Betts Kathleen Betts, Deputy Assistant Secretary for Office of Children Youth and Families, formerly MBHP Director of Children and Adolescent Services
Beyer Dr. Marty Beyer, plaintiffs’ expert on clinical and program reviews
Bickman Dr. Leonard Bickman, defendants’ expert on effectiveness of intensive home-based services
Burns Dr. Barbara Burns, Professor of Medical Psychology and Director of Services Effectiveness Research, Duke University, plaintiffs’ expert on effectiveness of intensive home-based services
Cohan Marjorie Cohan, Executive Director of Brien Center
Conroy Dr. James Conroy, plaintiffs’ expert on sampling and utilization data analysis
Earp Jackie Earp, guardian of named plaintiff of Shaun
Estes Barbara Estes, guardian of named plaintiff of Devin
Fields Suzanne Fields, Director of MBHP Child and Adolescent Services, formerly Manager for Systems of Care
Foster Dr. E. Michael Foster, defendants’ expert on sampling
Friedman Dr. Robert Friedman, Professor and Chair of Department of Child and Family Studies and Director of Research and Training Center for Children’s Mental Health at University of South Florida, plaintiffs’ expert on effectiveness of intensive home-based services
Goldstein Dr. Richard Goldstein, defendants’ expert on sampling
Greer Dr. James Greer, Medical Director of Child and Family Division of Providence Center, Rhode Island, plaintiffs’ expert on clinical review
Grimes Dr. Katherine Grimes, Medical Director of Massachusetts MHSPY
Hamilton Christine Hamilton, guardian of named plaintiff of Tyriek
Jackson John Jackson, Executive Director of Child and Family Services in New Bedford
Joyner Narell Joyner, plaintiffs’ expert on clinical review
Kaegebein Dr. Deborah Kaegebein, MBHP, Director of Care Management
Kamradt Bruce Kamradt, Director of Wraparound Milwaukee, plaintiffs’ expert on program review
Koyanagi Chris Koyanagi, Policy Director of Judge David L. Bazelon Center for Mental Health Law, plaintiffs’ expert on Medicaid funding and effectiveness of intensive home-based services
Kress Carol Kress, MBHP, Vice President of Clinical Operations
Lambert Lisa Lambert, Assistant Director, Parent Advisory League
Magnus Dr. Stephen Magnus, defendants’ expert on sampling
Marcus Jon Marcus, Vice President of Child and Family Services at Community Counseling of Bristol County
Matteodo David Matteodo, Executive Director of Massachusetts Association of Behavioral Health Systems (trade association of private Massachusetts psychiatric hospitals)
McMullan Barbara McMullan, MassHealth, Assistant Director of Preventative Health Services
Metz Dr. W. Peter Metz, Principal Investigator for WCC, defendants’ expert on effectiveness of intensive home-based services
Michaels Neal Michaels, DSS, Director of Family-Based Services
Mikula Joan Mikula, DMH, Assistant Commissioner for Child and Adolescent Services
Nace Dr. David Nace, Vice President and Chief Medical Officer of McKesson Health Solutions, Malvern, Pennsylvania, plaintiffs’ expert on administration of EPSDT services and special request regulation
Norton Michael Norton, MassHealth, Deputy Commissioner for MassHealth Behavioral Health Programs
O’Shea Paul O’Shea, President and CEO, Health and Education Services
Rogers Dr. E. Sally Rogers, Director of Research, Center for Psychiatric Rehabilitation at Boston University, plaintiffs’ expert on sampling
Rosenbaum Sarah Rosenbaum, Hirsch Professor of Health and Law Policy, George Washington University, plaintiffs’ expert on administration of EPSDT services
Sherwood Emily Sherwood, MassHealth, Manager of Systems of Care Initiatives
Straus Dr. John Straus, MBHP, Vice President of Medical Affairs
Sutherland Dr. Michael Sutherland, plaintiffs’ expert on sampling
Valentine Carl Valentine, plaintiffs’ expert on cost effectiveness of intensive home-based services
Wentworth Robert Wentworth, DSS, Director of Integrated Services, formerly Director of Residential Services
Whitaker Beth Whitaker, plaintiffs’ expert on clinical review
White Marcia White, plaintiffs’ expert on clinical review
Wozniak Dr. Janet Wozniak, treating physician of named plaintiff Anton
2. Below is a list of abbreviated terms used in the Findings of Fact, followed by the full name of that term.
AND Administratively Necessary Day
ART Acute Residential Treatment
ASAP Assessment for Safe and Appropriate Placement
CAFAS Child and Adolescent Functional Assessment Scale
CARD Cases Awaiting Resolution or Disposition
CBAT Community-Based Acute Treatment
CCAAP Comprehensive Child and Adolescent Assessment Protocol
CFFC Coordinated Family Focused Care
CHINS Child In Need of Services
CSP Community Support Program
DMA Division of Medical Assistance
DMH Department of Mental Health
DMR Department of Mental Retardation
DYS Department of Youth Services
DSS Department of Social Services
EOHHS Executive Office of Health and Human Services
EPSDT Early and Periodic Screening, Diagnosis and Treatment
ESP Emergency Service Provider
FST Family Stabilization Team
ICM Intensive Clinical Management
IFBS Intensive Family Based Services
ISP Individual Service Plan
MBHP Massachusetts Behavioral Health Partnership
MCO Managed Care Organization
MHSPY Mental Health Services Program for Youth
PCC Primary Care Clinician
SAMHSA Substance Abuse and Mental Health Services Administration
SED Serious Emotional Disturbance
WAM Wraparound Milwaukee
WCC Worcester Communities of Care
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I. THE DEFENDANTS PRESENTED NO EVIDENCE ABOUT SERVICES ACTUALLY DELIVERED TO SED CHILDREN, IN CONTRAST TO THE PLAINTIFFS’ OVERWHELMING EVIDENCE THAT THESE CHILDREN DID NOT RECEIVE INTENSIVE HOME-BASED SERVICES
A. The Defendants’ Proposed Findings Regarding Services “Provided” Rely Exclusively On Descriptions In Contracts And Manuals.
1. All of the defendants’ proposed findings concerning the services “provided” by MassHealth are actually contentions regarding “[b]ehavioral health services available under the Massachusetts Medicaid program.” DF Section I(B) (emphasis added). These findings are based almost exclusively on the MBHP contract or the trial testimony of MassHealth and MBHP administrators generally describing what services they allegedly offer, without regard to whether, and to what extent, any services they actually provide to SED children. DF 24-94.
2. Although the findings describe provisions in the MBHP contract (and presumably in those of the other MCOs) regarding assessments, crisis services, case management, clinical teams, and individualized supports, these proposed findings are devoid of evidence as to services actually delivered to SED children, like the plaintiff class. None of the defendants’ proposed findings mention the number of children who have received any of the allegedly offered services. DF 24-94. Nor do these proposed findings mention whether, or the extent to which, children’s mental health needs have been identified or assessed, or the services delivered to treat such needs. DF 24-94. In sum, descriptions of services in manuals and contracts are insufficient to establish that even the limited services allegedly offered by the defendants reach needy children. Friedman TT 401:1-22.
3. Even at the level of service descriptions in contracts and manuals, the MassHealth programs described in the defendants’ proposed findings (other than CFFC and MHSPY) do not include or constitute intensive home-based services. PF 184-204. Nor can the discrete and limited programs offered by MBHP and the other MCOs be combined into an integrated intensive home-based treatment. PF 205-241.
4. Further, although MassHealth cannot delegate its EPSDT responsibilities, PF 253, the defendants devote a significant number of findings to services allegedly provided by DMH and DSS. DF 117-155. MassHealth does not track or monitor these services to determine whether DSS and DMH appropriately provide medically necessary treatment to SED children. PF 310. Moreover, these services as described do not provide adequate intensive home-based services to SED children, and most do not provide intensive home-based services at all. DF 121-125, 140-153 (residential/inpatient services). DMH’s programs serve only a very small percentage of Medicaid-eligible children; DSS’s programs have had a disproportionate focus on restrictive residential care. PF 251-270. As with the MassHealth programs, the defendants’ findings describing available DSS and DMH programs rely entirely on the trial testimony of administrators generally, without regard to services actually delivered or how many SED children actually receive such services. DF 117-155
5. Not a single one of the defendants’ proposed findings about services allegedly “provided,” either by MassHealth or other state agencies, relies on specific utilization data such as the Quarterly Utilization and Cost Report that MassHealth and MBHP submit to the state legislature (PX 535). DF 24-155.
6. The defendants’ own utilization data undermine their contention that the services they allegedly offer remotely approach the needs of SED children. PF 201, 229, 236, 238-240. The discrete services cited by the defendants serve only a small fraction of the SED child population. PRF 8. For example, for the first three quarters of Fiscal Year 2004 (the most recent data available for the trial), these services were provided to the following numbers of children (aged 0-18): Community Crisis Stabilization – 61, Community Support Program – 281, Family Stabilization Teams – 902, Intensive Community-Based Acute Treatment – 164, Partial Hospitalization – 226, Community-Based Acute Treatment for Dual-Diagnosis – 10, Specialing – 9. PX 535/HHS14752-14756, 14760, 14800.
B. Instead Of Demonstrating Delivery Of Medically Necessary Services, The Defendants Rely On The Absence Of Denial Of Service Requests .
7. The defendants claim that MBHP has never denied a request for FST or CSP services. DF 77, 85. However, the absence of denial of service requests hardly constitutes evidence that MassHealth or MBHP is providing all needed treatment. Straus TT 3039:15-20 (number of requests for services cannot be equated with the need for services). MBHP does not track the number of children who need services. PF 308-309; Straus TT 3040:3-3041:6. Instead, it relies on the “hope that all of [its] providers are aware that such service exists and would get that family and member to that service.” Id. See PRC 11-12, infra.
C. In Contrast, The Plaintiffs Present Multiple Forms Of Direct Evidence That SED Children Are Not Receiving Intensive Home-Based Services
8. By the defendants’ own estimate, approximately 14,000-15,000 Medicaid-eligible children suffer from SED with extreme dysfunction. PF 6. This number dwarfs the total number of children served by all of the non-residential MassHealth programs identified in the defendants’ findings. For the first three quarters of Fiscal Year 2004, the total number of children (aged 0-18) who received mental health outpatient services was 2,437, and the total number who received mental health diversionary services was 1,669. PX 535/HHS 14750, 14778. These numbers considerably overstate the total number of children who received services, as the numbers include many children who received multiple services.
9. In addition to this data demonstrating unmet need, the plaintiffs presented direct testimony of the plaintiffs’ parents and guardians that intensive home-based services have not been provided. PF 82-131. Further, the plaintiffs’ expert clinical review presents compelling evidence that needed services are not being provided both to the sample and the class. PF 132-173. See Section III, infra,.